NYT : Mukasey Treads Careful Line at Senate Hearing

Mukasey Treads Careful Line at Senate Hearing

By PHILIP SHENON | October 18, 2007

WASHINGTON, Oct. 17 — President Bush’s nominee for attorney general, Michael B. Mukasey, promised on Wednesday to block political meddling at the Justice Department but did not distance himself from the Bush administration’s most controversial antiterrorism policies.

Appearing at a confirmation hearing before the Senate Judiciary Committee, Mr. Mukasey, a retired federal judge from New York, walked a careful line. He tried to assure lawmakers that he would be far more independent of the White House than the previous attorney general, Alberto R. Gonzales, while not backing away from many of the disputed policies that Mr. Gonzales advocated on Mr. Bush’s behalf.

Although Mr. Mukasey disappointed Democrats by not answering many questions about those polices, senators from both parties suggested at the end of a day of testimony that he was all but certain to be confirmed. The tone of the hearing, which will continue Thursday, was polite and cordial, with Mr. Mukasey answering questions in a calm, even voice and smiling occasionally at a senator’s turn of phrase.

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 he would not link personnel decisions to political loyalties and would demand that all of the department’s hiring 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.

“Torture is unlawful under the laws of this country,” Mr. Mukasey said. “It is not what this country is all about. It is not what this country stands for. It’s antithetical to everything this country stands for.

“Soldiers of this country liberated concentration camps toward the end of World War II and photographed what they saw there as a record of the barbarism we opposed. We didn’t do it that so that we could then duplicate it ourselves.”

He criticized a Justice Department legal opinion issued early in the administration, and since rescinded, that allowed harsh interrogation techniques on terrorist suspects. “It was a mistake,” he said. “It was unnecessary.”

Mr. Mukasey distanced himself from the idea that presidential power during wartime makes it unnecessary to consult Congress, a position espoused by Vice President Dick Cheney and David S. Addington, Mr. Cheney’s chief of staff and former legal counsel.

“I think 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,” he said. “When the president acts pursuant to his authority with help from the Congress, with the tools that the Congress provides, then we don’t have to get into butting heads over who can and who can’t.”

Mr. Mukasey declined to discuss recent news reports that the Justice Department, after rescinding the original opinion on harsh interrogation techniques, produced two secret legal opinions in 2005 that authorized similar techniques in terrorism cases.

He said he could not comment on the later memorandums because he had not read them; he said he intended to review them early in his tenure at the Justice Department.

When Senator Charles E. Schumer, Democrat of New York, suggested in his questioning that the 2005 opinions might authorize torture, Mr. Mukasey stopped him. “You characterize it as torture,” he said. “I do not know of such a policy, and I hope not to find them.”

Nor would he comment in detail on the legality of the program of eavesdropping without warrants that was authorized by Mr. Bush shortly after the Sept. 11 attacks and has been strongly criticized by civil liberties groups and lawmakers from both parties as possibly unconstitutional.

“I am not familiar with that program,” said Mr. Mukasey, who knew enough about the program to refer to it as the Terrorist Surveillance Program, the name preferred by the White House.

The program remains highly classified, and Mr. Mukasey suggested that he had not given information since his nomination last month about how the National Security Agency program operates. “For me to make a categorical statement with regard to that program one way or the other, I think, would be enormously irresponsible,” he said.

Whatever their concern about some of his answers on national security issues, senators from both parties appeared eager to vote to confirm Mr. Mukasey and have him go to work at the Justice Department as quickly as possible given the turmoil left there by Mr. Gonzales.

“This nomination can begin the repair process” said Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the Judiciary Committee and who led the effort to oust Mr. Gonzales.

Senator Arlen Specter of Pennsylvania, the committee’s ranking Republican, told Mr. Mukasey that the department “urgently needs a restoration of integrity and honesty and independence.”

“We have seen a situation where there have been serious allegations of political influence,” Mr. Specter said, “and it is very important that those matters be cleared up.”

“Going right to the heart of the matter,” he continued, “are you prepared to resign if the president were to violate your advice — in your view, violate the Constitution of the United States on an important matter?”

Mr. Mukasey replied: “That would present me with a difficult but not a complex problem. I would have two choices. I could either try to talk him out of it — or leave. Those are the choices.”

Mr. Specter reframed the response: “If the alternative is to leave if you can’t talk him out of it, then I think the answer to my question is yes.”

Mr. Mukasey nodded. “It is,” he said.