Mukasey won't rule out expansive action in war on terror

Michael Mukasey.
Michael Mukasey. Chuck Kennedy / MCT

WASHINGTON — Attorney General nominee Michael Mukasey refused Thursday to rule out a controversial method of interrogating overseas terrorism suspects and declined to place limits on President Bush's authority to eavesdrop without warrants.

As his confirmation hearings drew to a close, Mukasey's comments before the Senate Judiciary Committee left open the possibility that he would endorse the same policies that critics accused his predecessor, Alberto Gonzales, of authorizing or sanctioning.

In one exchange, Mukasey didn't respond clearly to questions about torture. While Mukasey has condemned the use of torture, he wouldn't say whether waterboarding should be deemed illegal.

"If it amounts to torture, it is not constitutional," he told Sen. Sheldon Whitehouse, D-R.I.

"I'm very disappointed in that answer," Whitehouse shot back. "I think it is purely semantic."

What the administration considers torture has yet to be made clear. President Bush has declined to comment on specific interrogation techniques, saying only that the United States doesn't torture. The White House hasn't indicated whether it would permit methods such as waterboarding, which entails pouring water on a prisoner's face to trigger the gag reflex.

Mukasey has denounced a 2002 Justice Department memo on interrogation methods that Gonzales endorsed. The memo concluded that the president could authorize policies that violated international and U.S. laws banning torture. After the memo was widely repudiated, a presidential executive order later set new limits on interrogation, but continued to allow harsh treatment that critics charge could include waterboarding.

Mukasey on Thursday acknowledged the difficulty in defining what techniques should be banned as cruel, inhumane and degrading.

"We have to also recognize that when we're talking about coercive methods of interrogation, this is not a matter of choosing pleasant alternatives over unpleasant alternatives, or good alternatives over bad alternatives," he said. "It's a choice among bad alternatives."

Administration officials said they couldn't comment on specific interrogation methods.

Several times during the hearing, Democrats appeared frustrated with Mukasey's answers, saying they were troubled that he wouldn't object to unchecked executive powers in the name of the war on terror.

"I am concerned that you leave some opening that different parts of our government may be held to different standards, or that some may be authorized to act outside the law," said Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman.

Despite his wrangling with Democrats, Mukasey is expected to be confirmed by the end of the month.

Senators pressed Mukasey to reject the justification for a previous spying program that allowed the administration to eavesdrop on overseas calls without warrants — contrary to laws that require oversight by a secret surveillance court. The White House has since shifted its position, saying that it went to the court to secure approval of the program and would no longer eavesdrop without warrants.

Mukasey, however, left open the possibility that the president's executive powers might allow him to act contrary to the law.

"So are you telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?" asked Sen. Russ Feingold, D-Wis.

Mukasey denied that he was allowing for the assertion of unlimited executive powers, but he added that the president had certain "exclusive" powers, as did each branch of government.

"We are not dealing here necessarily with areas of black and white — I understand that," he said, "which is why it's very important that push not come to shove on these questions, because the result can be not simply discord, but disaster."