Unlike Gonzales, Mukasey doesn't think Bush has right to torture
Opening Attorney General nominee Michael Mukasey's Senate confirmation hearing Wednesday, the top Democrat on the Judiciary Chairman accused the Justice Department under Alberto Gonzales and John Ashcroft of allowing the torture of terror detainees, and the nominee quickly disavowed the practice.
"The attorney general cannot interpret our laws to mean whatever the current administration, Republican or Democratic, wants them to mean," Sen. Patrick Leahy (D-VT) said Wednesday. He charged that the Bush administration Justice Department "doubled back to redefine torture, to cruel, inhuman and degrading treatment to allow the very conduct of torture that this congress had outlawed."
Mukasey said that he had not been "read into" classified Justice Department documents regarding the use of cruel or degrading treatment by CIA interrogators, but he said he would not condone torture.
Leahy asked specifically about the "Bybee memo," which defined broad limits on interrogation tactics, allowing physical pain to be inflicted up to the point that would cause "organ failure" or "death." The memo from then-Assistant Attorney General Jay Bybee was later overridden by an executive order.
The nominee disavowed the memo and said he believed it was contrary to the law and values of America, but he declined to discuss specific steps he would take because he was unaware of the specifics of classified policies he had yet to be briefed on. His stance that President Bush does not have the right to torture detainees is one not taken by his predecessor, Alberto Gonzales.
Mukasey, a former federal prosecutor and district judge from New York, pledged to excise political influence from the Justice Department, protecting civil liberties and standing up to President Bush, if necessary. But he often demurred when asked about specifics until he has a chance to review the policies that are in place now.
Asked about President Bush's claims after Sept. 11 that he could authorize warrantless spying on Americans, Mukasey appeared to endorse Bush's claim of broad executive authority, which critics say violated the Foreign Intelligence Surveillance Act.
Mukasey said there was "some gap between where FISA let off and where the Constitution gave the president authority to act," but he would not weigh in on specifics of the so-called Terrorist Surveillance Program saying he had not seen the classified details.
Congress is in the midst of moving through a FISA update, with the Senate Intelligence Committee expected to introduce a draft this week. Mukasey said he would be guided by the principal that "protecting civil liberties ... is a part of protecting national security."
Leahy asked whether Mukasey would allow a US Attorney to pursue contempt charges against current and former Bush administration officials who have refused to appear before Congress, but the nominee punted. He said a prosecutor would have to convince a grand jury that claims of executive privilege were unreasonable and unable to prevent testimony.
The House Judiciary Committee has approved a resolution seeking contempt charges against two Bush administration figures, but the measure has not been considered by the full House.
Decisions on pursuing charges would come if and when Congress approved the charges, he said, but his hope is that "I don't have to make that decision."
The following video is from CNN.com, broadcast on October 17, 2007.
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