Hearing for Mukasey gets prickly

The confirmation hearing of Atty. Gen.-designate Michael B. Mukasey turned contentious Thursday as Senate Democrats accused the nominee of dodging questions about a controversial interrogation technique and backtracking on statements he made about the obligations of the president to follow the law.

In a testy final day of questioning before the Senate Judiciary Committee, Mukasey drew the wrath of some Democrats on the panel when he refused to say whether he believed that so-called waterboarding -- a technique that simulates drowning -- constitutes torture that is prohibited by the Constitution.

Waterboarding has become a flash point in the debate over the limits of U.S. interrogation policy since the start of the Iraq war. And it was targeted by Congress in 2005 legislation outlawing “cruel, inhuman or degrading” treatment of prisoners.

“I don’t know what’s involved in the technique,” Mukasey said in an exchange with Sen. Sheldon Whitehouse (D-R.I.). “If waterboarding is torture, torture is not constitutional.”

“That’s a massive hedge. I mean, it either is or it isn’t,” Whitehouse responded. He gave a brief description of the practice, but Mukasey still declined to offer an opinion on its lawfulness.

“I’m very disappointed in that answer,” Whitehouse said. “I think it is purely semantic.”

The exchange marked some of the first serious criticism of the nominee, and contrasted sharply with the first day of hearings Wednesday, in which Mukasey was widely praised for being willing to take on the job of restoring the beleaguered agency.

His answers Thursday unnerved Democrats who viewed former Atty. Gen. Alberto R. Gonzales as lacking candor and who are hoping for a fresh start under Mukasey, a retired federal judge.

Confirmation of Mukasey, 66, remains on track, but Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) indicated that a Senate vote could be delayed while the panel further explores his views.

“I am concerned that on a number of your answers yesterday, there was a very bright line on questions of torture and the ability of an executive, or inability of an executive, to ignore the law. That just seems nowhere near as bright a line today,” Leahy said Thursday. He wondered aloud whether Mukasey had received criticism from White House officials overnight after a hearing Wednesday that encouraged members of both parties.

Mukasey said he had received no such criticism.

The nominee was also accused of backtracking on statements he had made Wednesday that the president had to follow the law like any other citizen.

He told Leahy on Thursday that he believed there might be times that the president, in order to defend the country, can ignore laws that Congress enacts. That authority, he said, is embedded in the Constitution.

The issue has been of concern to lawmakers since media reports two years ago disclosed how President Bush ignored federal wiretapping law to launch a warrantless anti-terrorism program.

Congress and the White House are negotiating a new law, and Democrats want assurances that Bush will operate within it.

“Can a president put somebody above the law by authorizing illegal conduct?” Leahy inquired.

“The president doesn’t stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution,” Mukasey said.

Leahy: “I’m troubled by your answer. I see a loophole big enough to drive a truck through.”

Sen. Russell D. Feingold (D-Wis.) said he found Mukasey’s view “alarming.”

“It sounds like overnight you’ve gone from being agnostic . . . to holding what is a rather disturbing view,” he said. “You have said today that you believe the president may violate a statute if he is acting within his [constitutional] authority.”

Mukasey said he was only stating a constitutional truism. “Each branch [of government] has its own sphere of authority that is exclusive to it,” he said.

Leahy said he was also troubled by how Mukasey was interpreting the Justice Department role in prosecuting contempt-of-Congress charges. The House and Senate have taken steps to hold several former White House officials in contempt for refusing to testify about the firing last year of nine U.S. attorneys, which Democrats believe was politically motivated.

The officials, including former Bush political strategist Karl Rove and former White House Counsel Harriet E. Miers, have claimed immunity under the doctrine of executive privilege.

Mukasey indicated it would be hard for the Justice Department to prosecute under those circumstances because department lawyers were the ones who gave advice to the White House that the officials could properly assert the privilege.

He said the department, under both Democratic and Republican administrations, has made it a policy of declining to prosecute under those circumstances.

“We have a bit of a problem here because some of these [privilege] claims are extremely broad,” Leahy said.

He said he planned to follow up with written questions to the nominee and expected his answers back before scheduling a confirmation vote.

Mukasey also indicated he opposed a federal shield law that for the first time would establish standards limiting the power of federal authorities to compel reporters to testify or disclose documents and sources they have used in their reporting.

Mukasey said he had “some anxiety” that the law would encourage the disclosure of sensitive national security information. Bush has threatened to veto the legislation on similar grounds.

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rick.schmitt@latimes.com