Mukasey Rejects Terror Memo, DOJ Politics

Oct. 17, 2007 — -- The confirmation hearing of Michael Mukasey, who's been nominated for attorney general, has examined many contentious national security policies put in place by the Bush administration since 9/11, along with the politics that rocked the Justice Department under Alberto Gonzales.

Though the former federal judge is expected to be confirmed as the nation's 81st attorney general, the members of the Senate Judiciary Committee have expressed concern over the lingering controversy at the Justice Department regarding allegations of political influence taking precedence over the administration of law -- charges that boiled over during Gonzales' tenure.

'Facts and Law' vs. 'Interests and Motives'

The committee's top Republican, Sen. Arlen Specter of Pennsylvania, said at the start of the hearing that the Justice Department "urgently needs a restoration of integrity and honesty and independence" and faced "serious allegations of political influence" under Gonzales.

Mukasey assured the panel that he believes the rule of law should govern the Justice Department, not politics.

While Mukasey noted the different "cultures" present in the various Justice Department branches across the country, he said, "all those apparently different cultures are united by shared values and standards. Legal decisions on the progress of cases are decided by facts and law, not by interests and motives."

"So, too, the Justice Department's mission includes advising the other departments and agencies of government, including the president, on what choices they are free to make and what limits they face. Here, too, the governing standard is what the Constitution and the law permit and require."

'Confidence' in the Justice System

Mukasey also assured the senators that political affiliation would not play a role in the practices of the department, maintaining a stance that it should be an independent body so "citizens and everybody here can have confidence in the administration of justice in this country.

Gonzales left his post Sept. 17 after months of mounting criticism from lawmakers on Capitol Hill. Members of Congress alleged that under Gonzales' leadership, the Justice Department fired federal prosecutors for political reasons, abused surveillance authorities and reached new lows in morale among career employees. Over the summer, Democrats also claimed Gonzales repeatedly lied to Congress while under oath.

Currently, the Justice Department inspector general has several ongoing investigations into actions and policies put in place by Gonzales and his senior staff.

The hearing has also touched on several hot-button legal issues.

'Worse than a Sin, It Was a Mistake'

The panel's chairman, Sen. Patrick Leahy, D-Vt., asked Mukasey about the use of torture tactics in his first round of questions. Leahy called a 2002 Justice Department memo that allowed torture in some circumstances "one of the greatest stains on the history of this country."

Then-Assistant Attorney General Jay Bybee signed the memo, which Leahy said "concluded that the president has authority as commander in chief to override domestic and international laws prohibiting torture, to immunize anybody who commits torture -- immunize them from prosecution."

Leahy asked Mukasey whether he believes that the president has the authority to "override and immunize acts of torture," to which he replied, "We are party to a treaty that outlaws torture. Torture is unlawful under the laws of this country. The president has said that in an executive order."

"But beyond all of those legal restrictions," Mukasey continued, "we don't torture, not simply because it's against this or that law, or against this or that treaty. It is not what this country is about. It is not what this country stands for. It's antithetical to everything this country stands for."

He went on to cite the example of the U.S. participation in liberating Nazi concentration camps by noting, "we didn't do that so that we could then duplicate it ourselves."

Using strong language, Mukasey went on to disavow the memo, calling it "worse than a sin, it was a mistake. It was unnecessary."

FISA and Civil Liberties

Mukasey pledged that he would review existing legal opinions from the Justice Department's Office of Legal Counsel, which has set interrogation policy and authorized the National Security Agency's warrantless wiretapping program.

Offering his insight into the Foreign Intelligence Surveillance Act, the law first passed in 1978 that authorizes a secret court to issue surveillance warrants, and executive authority to establish the NSA program, Mukasey said the president is not able to "immunize illegality" and that, looking at FISA's "complex history," it's evident that "there was some gap between where FISA left off and where the Constitution permitted the president to act."

Responding to a question on the matter asked by Sen. Russell Feingold, D-Wisc., Mukasey said, "I think it's important to recognize that the fourth amendment bars unreasonable searches. It then goes on to speak of when a warrant is required and when it's not."

"But there's very scant, if any, case law on the question of whether intelligence-gathering, as distinct from gathering of evidence for criminal cases, is something that may very well be much more flexible than matters relating to the gathering of evidence."

Lawmakers are currently wrangling with the task of updating FISA.

Mukasey also addressed the conflicts between protecting freedoms of U.S. citizens and enforcing national security, saying that "protecting civil liberties and people's confidence that those liberties are protected is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us."

Guantanamo Detainees

Feingold's fellow Wisconsin Democrat Sen. Herb Kohl raised the subject of the confinement of detainees at the U.S. Navy's Guantanamo Bay facility, which Mukasey described as "a kind of no man's land of jurisdiction."

Mukasey admitted that "detaining people apparently without end" at Guantanamo Bay is giving the U.S. a "black eye" and that there should be an ultimate goal of closing it down "because it's hurting us." He said he thought President Bush shared that goal saying, "I think I'd be preaching to the converted."

Mukasey said he would give the president the best advice he could on the issue and said, "I think there are substantial problems with Guantanamo, both problems of reality and problems of perception."

Presidential Power

The Justice Department has been dogged by criticism that Gonzales, who had worked for Bush when he was governor of Texas and also served as White House counsel, operated it as though it was a branch of the White House instead of a politically independent division.

Asked by Specter if he would be prepared to resign if the president did not take his counsel on constitutional matters, Mukasey said, "If the president proposed to undertake a course of conduct that was in violation of the Constitution, 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."

Mukasey also noted that he would recuse himself from election matters pertaining to GOP presidential hopeful and former New York City mayor Rudy Giuliani, who is a close friend of his.

Material Witness Law

Another hot-button topic that could still come up at the hearing will be Mukasey's views on such such legal issues as the material witness law, which allows the government to hold witnesses temporarily to keep them from fleeing court proceedings.

So-called "dirty bomber" Jose Padilla, who was convicted on terrorism charges in August, was originally held on a material witness warrant instead of criminal charges. In an opinion piece in The Wall Street Journal published after the trial, Mukasey wrote that the Padilla case illustrated the fact that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."

Osama Awadallah, also detained on a material witness warrant because his phone number was found on a piece of paper in one of the Sept. 11 hijackers' cars, was later cleared of all charges, though his attorney said Awadallah was mistreated while in custody.

Both Padilla and Awadallah appeared before Mukasey during his time on the federal bench.

'Efficiency, Fairness and Integrity'

To his advantage, Mukasey has apparently gained the support of some of Gonzales' most outspoken critics.

Sen. Charles Schumer, D-N.Y., and Sen. Joe Lieberman, D-Conn., officially introduced Mukasey to the committee; Mukasey is from Schumer's home state, and he attended law school with Lieberman.

Schumer praised Mukasey for earning "a reputation for efficiency, fairness and integrity" throughout his career, but he didn't mince words in describing the current state of affairs at the Justice Department in calling it "an agency experiencing its greatest crisis since Watergate."

"From talking with him, it is clear that many of us are going to disagree with many of his views, and with some quite strongly. But at this time, the most important question is this: Will Judge Mukasey be independent enough and courageous enough to stand strong even against the man who nominated him, if that is what the law requires?" Schumer asked.

But Lieberman expressed faith in Mukasey, calling him a "man of the law, not a man of politics," and noting that he comes to the table with few ties to Bush.

Mukasey's Career

Mukasey's palatability to both parties stems in part from his extensive experience in the federal court system.

President Reagan nominated Mukasey to the federal bench in 1987; he served as a judge in the Southern District of New York for more than 18 years until he joined the New York law firm Patterson Belknap Webb & Tyler in September 2006.

During his tenure as a federal judge, Mukasey presided over the terrorism trial of Sheik Omar Abdel Rahman, also known as the "Blind Sheik," who was convicted of plotting to attack landmarks in New York. He also oversaw some of the original proceedings in the case against Padilla.

Additional Witnesses

In addition to Mukasey, former Attorney General and Pennsylvania Gov. Dick Thornburgh; Chuck Canterbury, national president of the Fraternal Order of Police, an organization that has endorsed Mukasey's nomination; and Mary Jo White, a former U.S. attorney for the Southern District of New York, are scheduled to testify at the hearings.

They will be joined by law professor and former Justice Department Deputy Assistant Attorney General Dawn Johnsen; Theodore Shaw, president of the NAACP Legal Defense and Educational Fund; and former Navy Judge Advocate General Rear Adm. John D. Hutson (Ret.).