WASHINGTON – Michael Mukasey was less direct about his positions on the use of torture and presidential authority Thursday during his second day of confirmation hearings before the Senate Judiciary Committee.
Concerned about the differences in Mukasey's statements,Sen. Patrick Leahy,D-Vt.,the committee chairman,said he didn't understand what had changed from Wednesday's testimony,when the nominee for attorney general adamantly said torture is unconstitutional.
“I'm worried about the torture,” Leahy said,adding that he also is fearful the executive branch will act without any regard to the law.
The Bush administration had nothing to do with Thursday's responses,Mukasey said.
“I received no criticism,” he said,after being questioned by Leahy.
Mukasey said he couldn't be too specific about the use of torture because he hasn't reviewed all of the methods in use. He did reiterate that torture is unconstitutional,and using anything other than military approved methods,even if the president calls for it,would be illegal.
“I need to be very careful about where I go about that subject,” he said.
Also troubling to some senators was Mukasey's opinion that executive privilege extends beyond communications to and from the president. The president has the authority to authorize things that could be construed as illegal,because of his power,he said.
Additionally,subpoenas sent to the White House that are handled by the Department of Justice might cause conflict because the president relies on the department for advice,Mukasey said.
Leahy said Mukasey backed off from his Wednesday testimony,giving softer answers.
“I do worry there has been a retreat today,” he said.
When the president instituted a terror surveillance program in the wake of the Sept. 11 terrorist attacks,he violated the Foreign Intelligence Surveillance Act,said Sen. Arlen Specter,R-Pa. Curious about Mukasey's stance,the ranking Republican asked him if the president violated the law.
“I understand there is more than one view on that,” Mukasey replied.
Others in the administration also have abused their power and put pressure on federal prosecutors to target specific people,and that can't continue,said Sen. Charles Schumer,D-N.Y.
If something like that happened,Mukasey said he would react “negatively” and would talk to the attorney involved and then have conversations with officials at the White House,including the president.
“I would make absolutely certain whatever the effect or pressure was,was undone,” Mukasey said.
Whoever is the next attorney general has to abide by the laws instead of looking for ways to circumvent them,said John Hutson,president and dean of the Franklin Pierce Law Center in Concord,N.H. The United States' greatest strength is human rights and rule of law,he said.
Hutson,who had a long legal career in the Navy,has previously testified before a congressional committee to criticize the way detainees at Guantanamo Bay are being treated.
“We all can say the United States does not torture,but all you have to do is read newspapers and you see examples of it,” Hutson said.
Mary Jo White,a partner at Debevoise & Plimpton,and a former U.S. attorney in New York,said Mukasey has a high regard for the law and will make a fine attorney general. Having seen him in action when he was a federal judge in New York,White said Mukasey treated everyone fairly.
“He is a man of great intellect and integrity,” she said. “There could not be,in my view,a stronger or better nominee for the Department of Justice.”