Michael Mukasey, President George Bush's choice to replace Alberto Gonzalez, whose office was criticized for its support of what the CIA has called "enhanced interrogation" techniques and opponents called torture, appeared to repudiate the use of such measures at the start of his confirmation hearings at which he also promised independence from the White House.
The apparent relaxing of US standards governing the treatment of prisoners since Sept. 11 has damaged America's standing around the world, and the issue is being closely watched abroad.
While Democrats in Congress expressed disappointment at some of Mr. Mukasey's answers, The New York Times reports that he did a good enough job to virtually guarantee his confirmation.
Democratic senators welcomed Mr. Mukasey's promise that he would impose new rules to limit contacts between political figures and the Justice Department. He also said ... the department's hiring [should] be done "on the basis of competence and ability and dedication and not based on whether somebody's got an 'R' or a 'D' next to their names."
Those remarks were clearly meant to distance Mr. Mukasey from the political scandals that engulfed the department during the tenure of Mr. Gonzales, who dismissed several United States attorneys around the country last year for what appeared to be political reasons.
Mr. Mukasey also pleased the Democrats who control the Judiciary Committee by saying that he considered torture of terrorist suspects to be illegal under American and international law and that the president did not have the authority to order it under any circumstances.
The Chicago Tribune says Mukasey "explicitly disavowed" the relaxation of standards regarding interrogation and detainees under Mr. Gonzalez.
He also quickly distanced himself from Gonzales by explicitly disavowing two Justice Department memos that authorized use of abusive tactics to interrogate suspected terrorists. Mukasey said that policy "was worse than a sin. It was a mistake."
Mukasey noted that the United States is bound by its own laws and treaty obligations to prohibit torture, but he went further, saying, "We don't torture, not simply because it's against this or that law or this or that treaty. Soldiers of this country liberated concentration camps and photographed what they saw there as a record of the barbarism they opposed."
Though Mukasey did not ever say so, some commentators believe he is signaling a new direction for the government.
Andrew Sullivan, a conservative columnist and blogger for the Atlantic Monthly, who has strongly opposed abusive interrogation methods, is hopeful about Mukasey, comparing his comments, particularly his remark that the US didn't record what went on in concentration camps so we could "duplicate what we opposed," to the position on the issue by Democratic Sen. Dick Durbin.
"Duplicate what we opposed"? Nazi concentration camps? Does that remind you of anyone?
"In a Senate floor speech Tuesday, [Senator Dick] Durbin cited an FBI report describing Guantanamo Bay prisoners chained to the floor in the fetal position without food or water and sometimes in extreme temperatures.
"If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control," he said, "you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime."
Is it not clear that Mukasey's and Durbin's point is exactly the same?
Other bloggers also believe Mukasey is committed to limiting executive power. Spencer Ackerman in a post
at the Talking Points Memo blog, praised Mukasey's testimony.
Most significantly, Mukasey said that he is unaware of any inherent commander in chief authority to override legal restrictions on torture – a huge repudiation of Dick Cheney, David Addington and John Yoo's perspective on broad constitutional powers possessed by the president in wartime – or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.
The right-leaning New York Sun agrees with the assessment that Mukasey is a shoo-in for confirmation,but that once in office he could leave the Bush administration's legal strategy for the war on terror "badly bruised."
The risks the pick carries for the Bush administration were also on display. In addition to denouncing in blunt terms the so-called torture memo, which was later revoked, Judge Mukasey heartily endorsed the withering critique a former Justice Department official, Jack Goldsmith, has made of the administration's attempts to assert executive power without involving Congress.
Asked by Senator Schumer about Mr. Goldsmith's recently published book, "The Terror Presidency," Judge Mukasey replied, "I thought it was superb. ... I couldn't put it down. In a way, I was sorry when I finished."
The judge went on to make clear that he endorses Mr. Goldsmith's central thesis that the Bush administration's embrace of what Mr. Schumer called "unilateralism" was a mistake. "I would certainly suggest that we go to Congress whenever we can. It
always strengthens the hand of the president to do that," Judge Mukasey said.
To be sure, senators still have questions about how far Mukasey would go in restraining the White House,
particularly when it comes to assertions of "executive privilege," the Associated Press reports.
Chairman Patrick Leahy, D-Vt., said he would query the former federal judge on his views of the administration's position on executive privilege. The issue arose when presidential counsel Fred Fielding declared certain White House documents and information off-limits under the privilege.
Mukasey on Wednesday gave a hint of his posture on the issue. While he sees valid reasons for declaring executive privilege, his reaction to some of the White House's rationale was, "Huh?"
Ranking Republican Arlen Specter, R-Pa., said he also would have questions about whether Mukasey believes the Justice Department can live with a legal shield for reporters against being forced to reveal sources in federal court. Again, Mukasey gave a glimpse of his opinion a day earlier, saying he had significant concerns about the legislation pending in the Senate. But he did not endorse or reject the proposal.