President Bush’s nominee for attorney general, Michael B. Mukasey, declined Thursday to say if he considered harsh interrogation techniques like waterboarding, which simulates drowning, to constitute torture or to be illegal if used on terrorism suspects.
On the second day of confirmation hearings before the Senate Judiciary Committee, Mukasey went further than he had the day before in arguing that the White House had constitutional authority to act beyond the limits of laws passed by Congress, especially when it came to questions of national defense.
He suggested that both the administration’s so-called warrantless eavesdropping program and its use of “enhanced” interrogation techniques for terrorism suspects, including waterboarding, may be acceptable under the Constitution even if they go beyond what the law technically allows. Mukasey said the president’s authority as commander in chief may allow him to supersede laws written by Congress.
The tone of questioning was far more aggressive than on the first day of the hearings on Wednesday as Mukasey, a retired federal judge, was challenged by Democrats who pressed him for his views on President Bush’s disputed anti-terrorism policies.
In the case of the eavesdropping program, Mukasey suggested that the president may have acted appropriately under his constitutional powers in ordering the warrantless surveillance without court approval even if federal law would appear to require a warrant.
“The president is not putting somebody above the law; the president is putting somebody within the law,” said Mukasey, who seemed uncomfortable with the harsh tone, occasionally stumbling in his responses. “The president doesn’t stand above the law. But the law emphatically includes the Constitution.”
The remarks about the eavesdropping program drew criticism from the committee’s chairman, Sen. Patrick J. Leahy, D-Vt., who told Mukasey that he was troubled by his answer, adding “I see a loophole big enough to drive a truck through.”
The questioning by the Democrats was tougher still regarding Mukasey’s views on presidential authority to order tough interrogation techniques on terrorist suspects, including waterboarding, which was used by the CIA on some of those who were captured and held in the agency’s secret prisons after the Sept. 11 terror attacks.
“Is waterboarding constitutional?” Mukasey was asked by Sen. Sheldon Whitehouse, D-R.I., in one of Thursday’s sharpest exchanges.
“I don’t know what is involved in the technique,” Mukasey replied. “If waterboarding is torture, torture is not constitutional.”
Whitehouse described Mukasey’s response as a “massive hedge,” since the nominee refused to be drawn into a conversation about whether waterboarding amounted to torture; many lawmakers from both parties, as well as civil liberties and human rights groups, have said that it is clearly a form of torture. The administration has suggested that it ended the practice after protests from Capitol Hill and elsewhere, although it has never said so explicitly.