During a long career in public service and private practice, Michael B. Mukasey has forged an independent path as a lawyer and federal judge. He has presided over 1,600 cases in almost 19 years on the bench. He has extensive experience on national security cases -- presiding over such critically important cases as U.S. vs. Rahman and Padilla vs. Bush. In the Omar Abdel Rahman case, 10 defendants were given prison sentences ranging from 25 years to life.
Judge Mukasey is not Alberto R. Gonzales. In our confirmation hearings (and subsequently, in writing), Judge Mukasey’s answers to hundreds of questions were crisp and to the point, and reflected an independent mind. That’s why I intend to vote to confirm him to be our next attorney general. I truly believe he will be a strong advocate for the American people.
The Justice Department is in desperate need of effective leadership. It is leaderless, and 10 of its top positions are vacant. Morale among U.S. attorneys needs to be restored, priorities reassessed and a new dynamic of independence from the White House established.
I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.
Serious questions have been raised about Judge Mukasey’s views on torture and on the separation of powers.
In the hearing, Judge Mukasey clearly expressed his personal repugnance regarding torture. And in a letter dated Oct. 30, he reiterated his personal views and described in detail the analysis he would undertake if confirmed. He wrote:
“I understand also the importance of the United States remaining a nation of laws and setting a high standard of respect for human rights. Indeed, I said at the hearing that torture violates the law and the Constitution, and the president may not authorize it as he is no less bound by constitutional restrictions than any other government official.
“I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.”
Specifically, on the subject of waterboarding, Judge Mukasey wrote:
“I do know ... that waterboarding cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (DTA). That is because waterboarding and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense (DOD) or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the manual.”
As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.
Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government. Sen. Edward M. Kennedy (D-Mass.) has introduced legislation to this effect. This legislation should be passed as quickly as possible. If Judge Mukasey is confirmed, I hope that the Judiciary Committee will ask him back to discuss this issue further.
I do not believe a president can be above the law, and neither does Judge Mukasey. In addition, Judge Mukasey explained that his view on executive power is based on an analysis of the Supreme Court’s 1952 decision in Youngstown Sheet & Tube Co. vs. Sawyer. Justice Robert Jackson wrote in that decision that the president’s power is greatest when he is backed by statutory authority from Congress, and at its lowest ebb when his actions are in conflict with a statute.
The bottom line is this: I hope that Judge Mukasey will fairly and evenhandedly represent the American people and direct the Justice Department wherever the facts and the law lead, not where the White House dictates.
Our nation needs a strong and independent attorney general, and I believe that Judge Mukasey will rise to the challenge.
Dianne Feinstein is California’s senior U.S. senator.