Justice nominee pledges reform

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Times Staff Writer

Atty. Gen.-designate Michael B. Mukasey promised Wednesday to infuse the Justice Department with a renewed sense of integrity and independence, saying that he would not allow partisan politics to affect the cases he brings or the prosecutors he hires, and that he would quit if he thought the White House was ignoring his advice.

His statements amounted to a repudiation of the tenure of his predecessor, Alberto R. Gonzales, and appeared to put him at arm’s length from President Bush, who selected the retired federal judge to lead the department over the remaining 15 months of his presidency.

Laying out a road map for reform in testimony before the Senate Judiciary Committee, Mukasey, 66, sought to reassure lawmakers and Justice Department employees that he would work to restore confidence in the beleaguered department and attempt to insulate it from the political influence that crept in under Gonzales.


Mukasey disavowed a 2002 Justice Department memo that gave Bush a green light to torture terrorism suspects. And he said he would review several other internal Justice opinions that gave the White House broad powers on detention and intelligence issues.

He outlined a new protocol for handling inquiries from the White House and other elected officials, and said he would overhaul rules that Gonzales ordered up giving political subordinates powers to hire and fire.

“Legal decisions and the progress of cases are decided by facts and law, not by interests and motives,” Mukasey declared in his opening remarks.

His guiding principles, though far from revolutionary, resonated with Republicans and Democrats on the committee, who came to view Gonzales as an arm of the White House political apparatus, leading to controversies such as the dismissal of nine U.S. attorneys last year.

Sen. Charles E. Schumer (D-N.Y.), an outspoken critic of Gonzales, was effusive in praising Mukasey and predicted that he would win unanimous support from fellow Democrats who control the Senate Judiciary Committee.

“The most important qualities we need in an attorney general right now are independence and integrity,” Schumer said, “and looking at Judge Mukasey’s career and his interviews that we have all had with him, it seems clear that Judge Mukasey possesses these vital attributes.”


Questioning of the nominee is expected to continue today, with a panel vote likely to come next week.

Mukasey, who retired from the federal bench last year after 18 years, would be the first former judge to head the Justice Department since Griffin B. Bell served under President Carter.

While serving in a Manhattan courthouse that was blocks from ground zero, he was literally and figuratively on the front lines of the prosecution of terrorism-related cases after the Sept. 11 attacks.

From the bench, he did not always side with the government, but he developed a reputation as being supportive of prosecutors’ actions to protect national security.

His conservative leanings were on display Wednesday, drawing occasional rebukes from otherwise admiring lawmakers.

Under questioning from Sen. Russell D. Feingold (D-Wis.), he was reluctant to say whether he thought the administration’s terrorist surveillance program crossed the legal boundaries of a 1978 law setting limits on government spying in the U.S.


Mukasey also said that he agreed with the view of Bell, who headed the department when the Foreign Intelligence Surveillance Act was enacted, that there was room under the Constitution for the president to take steps without consulting Congress.

“I find your equivocation here somewhat troubling,” Feingold said.

Mukasey said that because he was not familiar with the details of the classified terrorist surveillance program he could not offer an informed opinion.

“Well, for the moment, I’ll take ‘agnostic’ as better than simply adhering to some extreme notion of commander-in-chief power,” Feingold said.

Sen. Sheldon Whitehouse (D-R.I.) asked Mukasey whether he believed that detaining terrorism suspects for years without charge at Guantanamo Bay, Cuba, was a form of mistreatment.

“It is legal,” the former judge replied. “That’s not to say that as a matter of policy it’s a wise thing to do, that it doesn’t hurt us with allies on whom we rely for support in fighting the people we have to fight, and that it might not pay to carry forward a principle for the sake of carrying forward a principle when we wind up cutting our nose off to spite our face.”

Mukasey also expressed some disdain for Bush’s frequent use of so-called signing statements to assert that his authority as commander in chief gives him the right to ignore acts of Congress that he has just signed into law.


Bush issued one such statement in connection with a 2005 law that outlawed the use of “cruel, inhuman or degrading” treatment of terrorism suspects.

Sen. Arlen Specter (R-Pa.) asked Mukasey how he would respond if he were approached about a line of interrogation that he concluded violated the congressional ban on mistreatment. “Are you going to advise the person . . . that you follow the statute, or you defer to the president’s power?” Specter asked.

Mukasey responded: “I think the question assumes that the president has directed that that method of interrogation, notwithstanding a finding that it violates the law, should proceed anyway. And in that case, I have no course but to follow the law.”

Specter: “Follow the statute?”

Mukasey: “Yes, sir.”

But Mukasey declined to answer another question from Specter about whether he supports giving terrorism suspects full rights under the Constitution to challenge their incarceration under the rule of habeas corpus. Justice Department lawyers have argued that no such rights should be extended.

Mukasey said he did not want to answer because the issue is before the Supreme Court. “I’m going to have to do what I was told to do when I was a kid, which is I have to watch my mouth about this,” he told Specter.

Mukasey acknowledged that one of his most famous rulings as a judge might no longer be good law. He ruled that Jose Padilla, at the time accused of plotting a “dirty bomb” attack, could be held without charge as an “enemy combatant” even though he was an American citizen and picked up on U.S. soil.


He noted that the Supreme Court later held that the administration could detain an American picked up on a battlefield overseas but left open the question of detaining Americans in this country.

“I certainly can’t say that as of now there is clear authority authorizing what I thought there was authority to authorize in Padilla,” he said.

His strongest remarks were saved for a 2002 Justice Department opinion by the head of its Office of Legal Counsel that gave Bush the power to ignore federal law and torture terrorism suspects.

The memo “was worse than a sin, it was a mistake,” Mukasey said.

“Is there such a thing as a commander-in-chief override that would allow the immunization of acts of torture that violated the law?” Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) asked.

“Not that I’m aware of,” Mukasey said.

The administration has said that it has never condoned torture; the memo was withdrawn and rewritten after it became public in 2004.

But Gonzales -- who was in the loop as White House counsel at the time the memo was prepared -- refused to disavow the opinion during his confirmation hearing two years ago, which led Leahy and others to oppose his nomination.


Responding to other questions, Mukasey declined to guarantee that the Justice Department would pursue a referral from Congress if it were to hold members of the Bush White House in contempt for failing to testify about the U.S. attorney firings.

The officials have cited executive privilege in refusing to cooperate. Mukasey said they could be prosecuted only if their reliance on the immunity was “unreasonable.”

He also said he would look at reordering Justice Department resources to attack a nationwide rebound in violent crime, saying, “There is no excuse for making violent crime anything other than a very substantial priority.”