I think the Senate should unreservedly reject Mukasey.
From today’s New York Times:
October 19, 2007
Senators Clash With Nominee About Torture
By PHILIP SHENON
WASHINGTON, Oct. 18 â€• President Bushâ€™s nominee for attorney general, Michael B. Mukasey, declined Thursday to say if he considered harsh interrogation techniques like waterboarding, which simulates drowning, to constitute torture or to be illegal if used on terrorism suspects.
On the second day of confirmation hearings before the Senate Judiciary Committee, Mr. Mukasey went further than he had the day before in arguing that the White House had constitutional authority to act beyond the limits of laws enacted by Congress, especially when it came to national defense.
He suggested that both the administrationâ€™s program of eavesdropping without warrants and its use of â€œenhancedâ€ interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the presidentâ€™s authority as commander in chief might allow him to supersede laws written by Congress.
The tone of questioning was far more aggressive than on Wednesday, the first day of the hearings, as Mr. Mukasey, a retired federal judge, was challenged by Democrats who pressed him for his views on President Bushâ€™s disputed antiterrorism policies.
In the case of the eavesdropping program, Mr. Mukasey suggested that the president might have acted appropriately under his constitutional powers in ordering the surveillance without court approval even if federal law would appear to require a warrant.
â€œThe president is not putting somebody above the law; the president is putting somebody within the law,â€ said Mr. Mukasey, who seemed uncomfortable with the aggressive tone, occasionally stumbling in his responses. â€œThe president doesnâ€™t stand above the law. But the law emphatically includes the Constitution.â€
The remarks about the eavesdropping program drew criticism from the committeeâ€™s chairman, Senator Patrick J. Leahy, Democrat of Vermont, who told Mr. Mukasey that he was troubled by his answer, adding, â€œI see a loophole big enough to drive a truck through.â€
The questioning by the Democrats was tougher still regarding Mr. Mukaseyâ€™s views on presidential authority to order harsh interrogation techniques on terrorist suspects, including waterboarding, which was used by the C.I.A. on some of those who were captured and held in the agencyâ€™s secret prisons after the Sept. 11 terror attacks.
â€œIs waterboarding constitutional?â€ Mr. Mukasey was asked by Senator Sheldon Whitehouse, Democrat of Rhode Island, in one of the sharpest exchanges.
â€œI donâ€™t know what is involved in the technique,â€ Mr. Mukasey replied. â€œIf waterboarding is torture, torture is not constitutional.â€
Mr. Whitehouse described Mr. Mukaseyâ€™s response as a â€œmassive hedgeâ€ since the nominee refused to be drawn into a conversation about whether waterboarding amounted to torture; many lawmakers from both parties, as well as civil liberties and human rights groups, have said it is clearly a form of torture. The administration has suggested that it ended the practice after protests from Capitol Hill and elsewhere, although it has never said so explicitly.
â€œI mean, either it is or it isnâ€™t,â€ Mr. Whitehouse continued.
Waterboarding, he said, â€œis the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning. Is that constitutional?â€
Mr. Mukasey again demurred, saying, â€œIf it amounts to torture, it is not constitutional.â€
Mr. Whitehouse said he was â€œvery disappointed in that answer; I think it is purely semantic.â€
â€œIâ€™m sorry,â€ Mr. Mukasey replied.
While Mr. Mukasey still seemed almost certain to win Senate confirmation, a vote in the Judiciary Committee could be delayed until he provides written answers to questions raised Thursday by Mr. Leahy. The senator said he did not intend to hold the vote until after the responses were received and reviewed.
The committeeâ€™s ranking Republican, Senator Arlen Specter of Pennsylvania, said that while he shared some of Democratsâ€™ concerns about Mr. Mukaseyâ€™s views on the limits of presidential authority, â€œI think you are virtually certain to be confirmed, and weâ€™re glad to see the appointment and glad to see somebody who is strong, with a strong record, take over this department.â€
Other Republicans joined in the praise. â€œIâ€™ve listened to your testimony here, and it seems to me that you are extraordinarily well-suited for this position, pretty much as well as anybody who hasnâ€™t served in the position before could be,â€ said Senator Jon Kyl of Arizona.
Among the Democrats, Mr. Leahy was especially critical of Mr. Mukasey, wondering aloud whether he had been pressured overnight by the White House to defend the administrationâ€™s view of its expanded powers in dealing with terrorist threats.
â€œIn your answers yesterday, there was a very bright line on questions of torture and the ability of an executive, or inability of an executive, to ignore the law,â€ Mr. Leahy said. â€œThat seems nowhere near as bright a line today, and maybe I just donâ€™t understand.â€
â€œI donâ€™t know whether you received some criticism from anybody in the administration last night after your testimony,â€ he said, â€œbut I sensed a difference, and a number of people here, Republican and Democratic alike, have sensed a difference.â€
Mr. Mukasey insisted there had been no pressure from the White House on Wednesday, saying, â€œI received no criticism.â€