President Bush’s nominee for attorney general, once considered a shoo-in for easy confirmation, clashed with Senate Democrats last week over the limits of executive power. On his first day of hearings before the judiciary committee, former federal judge Michael Mukasey won bipartisan praise when he said that the attorney general must remain independent of the White House. If the president sought justification for violating the Constitution, Mukasey said, “I could either try to talk him out of it or leave.” That prompted panel chairman Patrick Leahy to say, “I’m encouraged by the answers.”
But the goodwill evaporated when Mukasey argued that the president had the right to order any action not forbidden by the Constitution—including warrantless eavesdropping and “enhanced interrogation”—even if Congress has passed a law against it. Mukasey also declined to say whether he considered the controversial interrogation technique of waterboarding to be “torture.” Some Democrats now want Mukasey to clarify his remarks before they will send the nomination to the full Senate for confirmation.
Democrats claim they don’t want “another yes-man as attorney general,” said The Wall Street Journal in an editorial. But what they mean is that they want their own yes-man. Democrats repeatedly pressured Mukasey to denounce Bush’s efforts to keep Americans safe from terrorists. Mukasey’s rebuff showed he “won’t let himself be intimidated into adopting any senator’s personal interpretation of the Constitution.”
The issue here isn’t a matter of personal interpretation, said Jed Rubenfeld in The New York Times. Mukasey testified that presidents have the prerogative to ignore the law as long as they are fulfilling their constitutional authority “to defend the country.” That’s chilling, and it goes against the most fundamental American principle: “that everyone, including the president, is subject to the rule of law.” Anyone who doesn’t agree with this basic principle should not be attorney general.
Mukasey’s views on torture are also troubling, said Phillip Carter and Dahlia Lithwick in Slate.com. He called torture “antithetical to everything this country stands for,” but then begged off ruling out waterboarding, a “technique from the Spanish Inquisition” that makes victims feel as if they’re drowning. Mukasey claimed he didn’t know enough about the now-infamous procedure to say whether it violates U.S. standards. His plea of ignorance was so disingenuous, “you could almost hear him channeling Alberto Gonzales.”
