Hearing of the Senate Committee on the Judiciary, Panel II - Nomination of Michael Mukasey to be Attorney General of the United States
Interview
Hearing of the Senate Committee on the Judiciary, Panel II- Nomination of Michael Mukasey to be Attorney General of the United States
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SEN. SCHUMER: Thank you, Mr. Chairman, and thank you, Judge Mukasey.
And I thought I'd just share with the panel and the audience: During the break, Judge Mukasey told me that he was enjoying the debate. He said it was a good back-and-forth on questions and answers and the kind of discussion -- he didn't say this but I imagine you might even have at law school. I know he's a professor there. And I told him that's great and I think it speaks well of him, and that's what many of us felt was so sorely lacking at the Justice Department for so many years. And hopefully there will lots of honest debate and discussion with the Congress as we move forward.
First I'd like to talk about judicial independence. And as you know, Jack Goldsmith, former head of the Office of Legal Counsel, wrote a book, this book, called "The Terror Presidency." I know you're familiar with it because we talked about it during our discussion. And it details some of the pressures brought to bear on Jack Goldsmith by figures in the administration who wanted him to justify what he thought wasn't right.
What did you think of this book, Judge Mukasey?
MR. MUKASEY: I thought it was superb. I mean, talk about -- couldn't put it down. I was, in a way, sorry when I finished it.
SEN. SCHUMER: Well, let's hope he doesn't have to write another one, or you don't have to write one like this.
MR. MUKASEY: I don't have a book in me.
SEN. SCHUMER: Okay. Thanks. (Laughter.)
SEN. LEAHY: You may after these hearings. (Laughter.)
SEN. SCHUMER: He's having a good time, Mr. Chairman. Or not a bad time, anyway.
Goldsmith repeatedly points out that the administration missed opportunities to put its terrorism policies on sound legal footing simply by going to Congress. In Hamdan, for example, the Supreme Court chastised the administration for not going to Congress, saying the administration could not proceed with military commissions without Congress's explicit approval. And he describes one meeting where now- Solicitor General Paul Clement warned that the Supreme Court might not accept the administration's arguments in support of its detention programs.
On page 124, Goldsmith reportedly asks -- he says, "Why don't we just go to Congress and get it to sign off on the whole detention program?" Others supported this approach, but David Addington, Vice President Cheney's chief of staff, asks, "Why are you trying to give away the president's power?" So they didn't go to Congress.
Now, do you agree that working with the Congress in the long run actually enhances the president's power, increases public confidence and protects policies from being rejected by the court?
MR. MUKASEY: (That's a known matter ?). Certainly I do.
SEN. SCHUMER: Okay. And do you commit to working with Congress before moving forward with any proposal like National Security Courts?
MR. MUKASEY: We can't move forward with National Security Courts unless and until we work with Congress. The Constitution says that it's Congress's power, not anybody else's, to constitute, as it says, such inferior courts as Congress may from time to time create.
SEN. SCHUMER: Great. Okay.
How about with respect to any new surveillance tools that you believe are needed that are outside of FISA, rather than stretch or ignore FISA?
MR. MUKASEY: I'm not in favor generally of stretching or ignoring. On the other hand, I don't know what tools are going to come to hand or to mind in the future.
SEN. SCHUMER: I'm not asking for the specifics. I'm just asking, if it's your opinion that the law ignores FISA or stretches it in a somewhat contorted way, would you suggest going to Congress?
MR. MUKASEY: I would certainly suggest that we go to Congress whenever we can. It always strengthens the hand of the president to do that.
SEN. SCHUMER: Great. Thank you.
Jack Goldsmith also writes -- he said, "It was said hundreds of times in the White House that the president and vice president wanted to leave the presidency stronger than they found it; in fact, at least in my opinion, they seemed to have achieved the opposite. They borrowed against the power of future presidencies, presidencies that --" oh, these are Goldsmith's words, complete -- "they borrowed against the power of future presidencies, presidencies that, at least until the next attack and probably even the following one, will be viewed by Congress and the courts as assistance they need with the harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years."
The last attorney general, by all accounts, was not much more than a potted plant or a rubber stamp behind closed doors when the subject turned to working with Congress. I want to know what attitude and approach you will bring to those discussions. Do you agree that unilateralism is a bad idea?
MR. MUKASEY: Unilateralism across the board is a bad idea. There are powers inherent in each branch here and there.
SEN. SCHUMER: When you're in a room -- when you're in the room, the room that Goldsmith was in, will you go along with a unilateral approach?
MR. MUKASEY: I will do what I think the Constitution and the laws mandate. If the subject under discussion involves an authority that I think actually inheres in the president and for all my endorsement of bilateralism and for all my belief that it strengthens the hand of the president, there are some authorities that inhere in him, just as there are some authorities that inhere in this body. But if we're talking about something that is a subject on which you should get the concurrence of this body or even a marginal subject, I will try to have a bias in favor of getting the concurrence of this body because it makes everybody stronger --
SEN. SCHUMER: Thank you.
MR. MUKASEY: -- whether --
SEN. SCHUMER: I think Goldsmith would agree with that. I think many of us on both sides of this -- on both sides of the aisle on this committee would agree with it, and I think it's a refreshing change.
Now, Goldsmith also writes that some of the OLC opinions he read when he came into office were, quote, "deeply flawed and sloppily reasoned" -- that's Goldsmith, obviously. You assured me yesterday -- and I just want to get this on the record -- you assured me yesterday that you would undertake a review of existing OLC opinions if you're confirmed on various issues. So just confirm to me that you will do such a review on the Terrorist Surveillance Program.
MR. MUKASEY: I will.
SEN. SCHUMER: Detention policies.
MR. MUKASEY: Yes.
SEN. SCHUMER: And torture policies.
MR. MUKASEY: Yes.
SEN. SCHUMER: Thank you.
MR. MUKASEY: Well, torture -- I wouldn't characterize them as torture policies -- (inaudible) -- as a policy on doing something unlawful. And I don't know of any such policy and, candidly, I hope not to find one.
SEN. SCHUMER: Okay. That's fair enough.
Okay. And if you find in this review a problematic opinion or legal justification, will you correct or -- modify it, correct it or withdraw it?
MR. MUKASEY: I will raise it with the people who originated it at first. As I said, my learning curve has been pretty steep and it's ongoing.
SEN. SCHUMER: I understand. But let's say your view is that it doesn't have the legal justification asserted in the opinion.
MR. MUKASEY: If my view after consideration with those people and with other people that I think I have to talk to is that it has to change, then it will change.
SEN. SCHUMER: Right.
And will you do so publicly and inform the Congress?
MR. MUKASEY: I think I have to be very, very careful about what I do publicly, what I undertake to do publicly and what I don't. I don't know the subject of all of those decisions, and I need to consider them and that subject before I make a categorical promise to come out and announce that I'm changing a policy or --
SEN. SCHUMER: But will -- if it's not going to create any adverse interest, if possible, will you do it publicly so we're all stronger?
MR. MUKASEY: I think it's important that government explain itself to its citizens and to the Congress, and that's what I think and that's what I'm going to continue to think.
SEN. SCHUMER: Right. Okay.
Next, I'd like to move on a little independent -- talking about independence. I take it you knew Jim Comey when he was the U.S. attorney in the Southern District. What did you think of his commitment to legal and ethical excellence?
MR. MUKASEY: I thought it was admirable and complete.
SEN. SCHUMER: As I mentioned in my introductory remarks, Comey gave an extraordinary speech to the National Security Agency on May 20th, 2005. He talked about the difficulty of doing what is right as a government lawyer. He talked about the difficulty of saying, "no."
So Judge Mukasey, here's my question again publicly, the one I asked you privately yesterday: Will you have the courage to look squarely in the eyes of the president of the United States and tell him "no" if that is your best moral and legal judgment?
MR. MUKASEY: Yes.
SEN. SCHUMER: And even when people are suggesting, as apparently David Addington has before, that, quote, "blood will be on your hands"?
MR. MUKASEY: Yes.
SEN. SCHUMER: In the future, if your Office of Legal Counsel is unable find a legal basis for a counterterrorism program, you agree with the conclusion, and the White House insists on proceeding with it nonetheless -- we've had this instance, as you know -- what will you do?
MR. MUKASEY: That presents what I guess I can describe as a difficult but not a complex problem. I will either talk them out of it or I will push away from the table and leave.
SEN. SCHUMER: Thank you.
Okay, this is executive privilege, and I have limited time left, so I'm going to be quick here and not go through it all, because we talked a little bit about this yesterday. And this is one area, I think, we had some disagreement.
As you know, many of us felt that the administration was going much too far in asserting executive privilege, particularly in the U.S. attorneys investigation. And one area where I thought they particularly stretched it was in a claim of executive privilege when a third party, say, the chairman of the New Mexico Republican Party -- that was one specific instance we had -- reached out to somebody in the administration. I've never heard of executive privilege being used in that regard, being -- the rationale of executive privilege is to allow unimpeded conversations, within the White House or even within an executive branch, to go on without the fear that they might be made public. Never heard that where there's a third party, where there's always a fear it might be made public by the third party who had the discussion and is not under executive privilege.
What's your view of this? Have you had a chance to think it over overnight?
MR. MUKASEY: I looked at the letter quickly and I've thought about it a bit. I don't know the facts relating to -- was it the chairman of the New Mexico Republican Party?
SEN. SCHUMER: Yeah.
MR. MUKASEY: I don't know who called whom and why. Obviously within the executive, there has to be the ability to gather facts from both within the executive and from the outside. I suppose I can envision circumstances in which because of the need to gather facts there may be some question of privilege.
Again I don't know what the situation was with respect to the chairman of the New Mexico Republican Party. I will admit to you that my first reaction to that section of the letter was, huh? But I'd like to take a closer look at the facts before -- before that's my only reaction.
SEN. SCHUMER: Okay, keep huh-ing. Just keep huh-ing on that.
MR. MUKASEY: Okay.
SEN. SCHUMER: Thank you, Mr. Chairman.
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