Mukasey a good fit for Justice Department intent on injustice

The New York Times, Oct. 20, 2007

Plainly, a Justice Department Pick of Like Mind

News Analysis
By ADAM LIPTAK

The senators questioning Michael B. Mukasey, President Bush’s nominee for attorney general, seemed so pleased at first to be receiving direct and unadorned answers that they appeared to be barely taking in what he was saying.

But in his two days of testimony this week, it became clear that Mr. Mukasey believes presidential power to be robust, expansive and sometimes beyond the power of Congress to control.

That is perfectly aligned with the Bush administration’s views, and if Mr. Mukasey was initially a refreshing presence to the Senate Judiciary Committee, it was only because he justified in plain terms what other administration lawyers have said in secret memorandums often cloaked in obfuscation.

Mr. Mukasey did denounce torture in the abstract, but he would not say what it is. He said he would work toward the goal of closing the prison at Guantánamo Bay, Cuba, but only because it has harmed the reputation of the United States.

He disavowed a 2002 Justice Department memorandum authorizing harsh interrogation techniques — but the department itself had disowned the opinion in 2004.

“He did a masterful and appropriate job of repudiating the excesses of what the administration had done,” said Jack Goldsmith, a law professor at Harvard who withdrew the 2002 memorandum when he served in the Justice Department. “But, at the same time, he appropriately defended executive power.”

That defense was substantial and sustained. Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

Despite the tense questioning of Mr. Mukasey on Thursday, there was no indication yesterday that any senators intended to oppose the nomination.

Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the committee, has said he intends to submit written questions about several of the issues that were raised during the hearings, especially over Mr. Mukasey’s views on expansive executive branch power. The senator said there would be no vote until Mr. Mukasey had replied to the questions. The White House said yesterday that Mr. Mukasey could not be expected to be specific in discussing classified programs on which he had not yet been briefed.

In his testimony, Mr. Mukasey’s legal analysis was telling and occasionally idiosyncratic.

He indicated, for instance, that he favored a narrow reading of the Supreme Court’s sweeping 2006 decision, Hamdan v. Rumsfeld, striking down the administration’s initial plan for military commissions to try prisoners at Guantánamo.

According to the Defense Department, the court decision means that Al Qaeda prisoners under interrogation must be given the protection of the Geneva Convention’s Common Article 3, which prohibits humiliating and degrading treatment of prisoners. But Mr. Mukasey said he did not think Hamdan went that far.

Gabor Rona, international legal director of Human Rights First, said the comment was troubling and suggestive.

“I simply don’t know where in the decision he could be reading in order to get the impression that Common Article 3 doesn’t apply to interrogation methodologies,” Mr. Rona said. “He seems to be leaving room for the argument made in the torture memos that the executive does have room to violate the Geneva Conventions.”

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

It is reflected in another decision Mr. Mukasey cited, Youngstown Sheet & Tube v. Sawyer, a 1952 case in which the Supreme Court rejected President Harry S. Truman’s assertion that he had the constitutional authority to seize steel mills during the Korean War. The decision included a widely admired concurrence from Justice Robert H. Jackson setting out a framework for considering clashes between presidential power and Congressional authority. “I recognize the force of Justice Jackson’s three-step approach,” Mr. Mukasey said.

The president has the most power when he acts with Congressional authorization, Justice Jackson said, and an intermediate amount when Congress is silent. The president’s power is at its “lowest ebb,” Justice Jackson wrote, when Congress has forbidden a particular action.

In the Hamdan case, the Supreme Court made the same point, and perhaps more forcefully. “Whether or not the president has independent power, absent Congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers,” Justice John Paul Stevens wrote for the majority, citing Youngstown.

But, like many attorneys general of both parties, Mr. Mukasey indicated that he understood Youngstown to leave room for presidential power even in the face of Congressional action. “I would certainly suggest that we go to Congress whenever we can,” he added.

The administration has in recent years met with substantial success in Congress, obtaining legislation on surveillance, military commissions and the treatment of detainees that authorized almost all of what it wanted.

“It’s been obvious from events of the last several years that everybody is better off — the president is better off, the Congress is better off, the country is better off — when everybody’s rolling in the same direction,” Mr. Mukasey said on Wednesday.

By Thursday morning, though, there were signs that not everyone was rolling together.

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly, though he noted the change in tone of the questioning.

“You’ve suggested that I’ve gone overnight from being an agnostic to being a heretic,” Mr. Mukasey said.

Philip Shenon contributed reporting from Washington.

Advertisements

0 Responses to “Mukasey a good fit for Justice Department intent on injustice”



  1. Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




Archives

Categories

RSS Gray Panthers in the News

  • An error has occurred; the feed is probably down. Try again later.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 589 other followers


%d bloggers like this: