Democratic Senators are poised to once again grill Attorney General Michael Mukasey on the issue of whether the interrogation technique called waterboarding — or simulated drowning — constitutes torture and is therefore illegal under U.S. laws.
At his confirmation hearing three months ago, Mukasey was able to dodge the question by saying he had not been "read in" to the classified programs involving detainee interrogation. On Wednesday, at his first congressional appearance since his controversial confirmation, he will have no such excuse.
Senators' interest in Mukasey's response has not waned since the hearings, when Mukasey explained that he didn't know "what was involved in the technique." Mukasey's response prompted Sen. Sheldon Whitehouse, D-R.I., to accuse him of a "massive hedge" on the issue.
After the hearings Mukasey wrote that he found certain interrogation techniques "repugnant" on a personal basis, but he refrained from calling them torture based on "hypothetical facts."
He was ultimately confirmed as attorney general by a vote of 53-40.
In preparation for the hearing on Wednesday, Democrats on the Senate Judiciary Committee have sent Mukasey a letter warning him that he has had "ample time" to study the issue. The senators wrote, "Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subjected to this abusive technique. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners."
Mukasey will also be asked about the Bush administration's legal position on the controversial Terrorist Surveillance Program that authorized warrantless surveillance of communications between suspected terrorists and parties within the United States and led to the Foreign Intelligence Surveillance (FISA) legislation currently before Congress.
Senators will return to the issue of executive power. At his confirmation hearing, Mukasey raised the ire of a number of Democratic senators when he was asked in the context of surveillance law that had been passed by Congress whether the president can ignore certain statutes.
Senate Judiciary Chairman Patrick Leahy, D-Vt., asked, "Can a president put somebody above the law by authorizing illegal conduct?"
Mukasey said, "The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law."
Since taking office, Mukasey has moved quickly to fill several vacancies after top officials resigned during the tumultuous tenure of his predecessor, Alberto Gonzales. Gonzales himself resigned after allegations that inappropriate political considerations had influenced the decision to dismiss nine U.S. Attorneys in 2006.
Mukasey has issued new procedures to ensure that communications between the White House staff and the Justice Department on pending criminal or civil investigations are handled only by certain designated officials to shield such investigations from potential political influence.
Last week, the White House also re-nominated Steven G. Bradbury to lead the Office of Legal Counsel at the Department of Justice. Bradbury, considered by many to be a pivotal player in the administration's legal strategy regarding the war on terror, was blocked by angry Senate Democrats last year. Bradbury has been serving as acting head of the office.
The move by the White House to re-nominate Bradbury infuriated some Democrats. Sen. Dick Durbin, D-Ill., said last week, "The President has thumbed his nose at Congress by choosing an individual who has been involved in authorizing some of the most controversial policies of this Administration — from warrantless surveillance of innocent Americans to torture guidelines that are inconsistent with American values. Despite their claims to the contrary, it appears that it is business as usual at the White House and Department of Justice."
Sen. Leahy is also awaiting response from Mukasey regarding the Department of Justice's internal review of procedures to select outside monitors to oversee out-of-court settlements between the department and large companies.
The New York Times reported that concerns had been raised when it was learned that New Jersey U.S. Attorney Christopher Christie had awarded lucrative contracts to several former Department of Justice officials, including former Attorney General John Ashcroft. The paper reported that while there were no accusations of wrongdoing, aides to Mukasey were concerned about the appearance of favoritism.
Mukasey has also come under fire for resisting calls for an independent counsel to investigate the recent controversy regarding the CIA's decision to destroy videotapes depicting two high-level detainees being subjected to possibly harsh interrogation techniques. Instead, Mukasey has named John H. Durham, Assistant U.S. Attorney from Connecticut, to head up the investigation.