Wartime powers and Mukasey

Senators' disquiet over nominee is rooted in presidential authority.

By Peter Grier | Staff writer of The Christian Science Monitor

from the November 8, 2007 edition

Washington - Much of the opposition to retired federal judge Michael Mukasey's nomination to be the next attorney general has centered on his refusal to call the harsh interrogation technique of waterboarding torture. But some senators, both Republicans and Democrats, are concerned about another aspect of Mr. Mukasey's view of the law: his embrace of expanded wartime powers for the president.

This disquiet, however, is unlikely to interfere with Mukasey's confirmation. Following his approval by the Senate Judiciary Committee on Tuesday, Mukasey seems virtually certain to win a full Senate vote on his nomination within the next few weeks.

But the unease may help explain why Mukasey's march to the Justice Department has proven so unexpectedly difficult.

"When significant conflicts arise in the confirmation process, there is usually a context of deeper problems," says William Ross, a law professor at the Cumberland School of Law at Samford University in Birmingham, Ala. "Some senators are worried about the expansion of executive powers under President Bush and feel the Senate has not exercised its proper oversight role."

Whether the commander in chief has the ability unilaterally to decide some fateful issues bearing on the nation's security is a question that has long been a source of tension between the White House and the Democratic-controlled Congress.

It's appeared prominently in controversies surrounding the National Security Agency's warrantless wiretapping efforts.

During his confirmation hearings before the Senate Judiciary Committee, Mukasey was uncharacteristically hesitant when answering questions on the limits of presidential power. However, he did indicate that it was possible that both warrantless surveillance and so-called "enhanced" interrogation techniques might be acceptable under the Constitution, even if they appear to violate federal statutes.

"The president doesn't stand above the law. But the law includes the Constitution," Mukasey told senators.

Mukasey's confirmation hearing may have been a sobering experience, say some legal experts. He appeared surprised by the pushback from senators on the powers issue, which included criticism from ranking minority member Sen. Arlen Specter (R) of Pennsylvania.

Then there was waterboarding, which he declined to name as "torture," though he judged to be "repugnant."

Furthermore, he's no Alberto Gonzales. For the most part, Mukasey appeared both more at ease in answering questions in public than the most recent head of the Justice Department ever did.

"He's more sophisticated as a lawyer and scholar than his predecessor," says Daniel Marcus, former general counsel of the National Commission on Terrorist Attacks Upon the United States, known informally as the "9/11 Commission."

Plus, due to court decisions and pressure from Congress, the administration has had to retreat in regard to its assertions of unfettered powers, says Mr. Marcus.

But Mukasey's answers to senators still indicate that he is a believer in strong presidential prerogatives.

"I don't think anyone should think we're going to see a sudden abrupt shift on this array of issues," says Marcus.

The legal underpinnings of the surveillance program have been a hot topic within the administration itself. Jack Goldsmith, head of the Justice Department's Office of Legal Counsel in 2003 and 2004, describes in a new book how he ripped up and rewrote legal findings supporting the eavesdropping that had been written by his immediate predecessors.

According to Mr. Goldsmith, the opinions were "sloppily" reasoned and "incautious in asserting extraordinary constitutional authorities" on behalf of the president.

"It was the biggest legal mess I have ever encountered," said Goldsmith at an Oct. 2 hearing before the Senate Judiciary Committee.

Debate in the full Senate over Mukasey's nomination will be heated. Democrats are split on the nominee, with many supporting him as the best prospective attorney general the administration is likely to nominate, while others remain outraged over his evasive statements on torture.

A heated debate, however, does not necessarily translate into a close vote. Most observers predict that in a Senate where the Democrats have a razor-thin margin of control, Mukasey probably can win at least 60 votes, more than enough to defeat any attempt to filibuster his nomination.