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Democrats Grill Justice Nominee On Bush Policies

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By PHILIP SHENON, The New York Times

Published: October 19, 2007

WASHINGTON - President Bush's nominee for attorney general, Michael Mukasey, declined Thursday to say whether he considered harsh interrogation techniques such as 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 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.'

Remarks about the eavesdropping program drew criticism from the committee's chairman, Sen. Patrick J. Leahy, D-Vt., who told Mukasey, 'I see a loophole big enough to drive a truck through.'

Questioning by 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 who were captured and held in the agency's secret prisons after the Sept. 11 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,' because the nominee refused to be drawn into a conversation about whether waterboarding amounted to torture.

'I mean, either it is or it isn't,' Whitehouse continued. Waterboarding, he said, 'is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning - is that constitutional?'

Mukasey again demurred: 'If it amounts to torture, it is not constitutional.'

Whitehouse said he was 'very disappointed in that answer - I think it is purely semantic.'

'I'm sorry,' Mukasey replied.

Although Mukasey still seemed almost certain to win Senate confirmation, a vote in the Judiciary Committee could be delayed until Mukasey provides written answers to questions raised Thursday by Leahy.

The senator said he did not intend to hold the vote until after the responses were received and reviewed.

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