For Mukasey, a quiz about independence at Justice

The nominee for attorney general appears Oct. 17 at the Senate. Democrats aim to size up his will to resist political pressure from the White House.

from the October 16, 2007 edition

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The detention of terrorism suspects is one specific policy on which Democrats may closely question Mukasey. In the days following the attacks of 9/11, Mukasey, then a federal judge in New York, approved secret warrants that allowed US law-enforcement officials to round up quickly some 70 suspects, all but one of them Muslims.

Judiciary Chairman Leahy has long criticized that roundup. Mukasey himself has since acknowledged that the law authorizing the warrants "has its perils."

In the past, Mukasey publicly has proposed a framework of special national security courts to handle sensitive cases. While that specific solution is unlikely to be popular with Democratic lawmakers, Senator Schumer, among others, has said that the now-retired judge is someone the Congress can work with to build a workable national-security law structure.

"We may have some disagreement on what that structure should be. But he will not try to unilaterally expropriate all of the lawmaking to the executive branch," Schumer said Oct. 12. "The point is that it's done with open debate, and Congress has to pass it."

Access to documents: sticking point?

Access to documents is another issue likely to arise at Mukasey's confirmation hearing.

Senate Democrats have been denied access by the White House to secret memorandums dealing with the treatment of terrorism detainees, as well as certain documents dealing with the National Security Agency's warrantless wiretapping program.

It's possible that this part of the hearing could prove contentious. But Mukasey did not himself contribute to or influence the documents in question, and the Justice Department is but a sideline player in any struggle between the White House and Congress over the withholding of documents due to administration claims of executive privilege.

"He's not really intimately involved there," says Mr. Tobias.

As to what he could accomplish at the Department of Justice, Mukasey may be limited by an unavoidable constraint: time.

The end is in sight for the Bush administration, and Mukasey may have a year, at most, in which to effect change at Justice. Restoration of morale could well be his first priority. That could be accomplished in months, particularly if he and the White House move to fill other empty top posts with permanent jobholders.

Limits on interrogation would be a more difficult area – and it is one on which Mukasey's specific views are not publicly known.

Mukasey might also push for institution of the national-security courts he has previously championed. While that might lead to serious discussion, it would be a huge initiative to push through in his limited time left.

• Wire service material was used in this report.

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