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Mukasey distances self from Gonzales

Attorney general nominee Michael Mukasey is sworn in Wednesday prior to testifying before the Senate Judiciary Committee.
Attorney general nominee Michael Mukasey is sworn in Wednesday prior to testifying before the Senate Judiciary Committee.
Susan Walsh, Associated Press

WASHINGTON (MCT) — Atty. Gen. nominee Michael Mukasey sought Wednesday to reassure critics of the Bush administration's anti-terror policies, explicitly telling a Senate panel he disapproved of the position on abusive interrogation practices backed by his predecessor, Alberto Gonzales.

After months of strife between Congress and the Justice Department, the confirmation hearing over the prospective attorney general was less a rancorous debate over the administration's policies than it was a polite back-and-forth over the future of the department.

The reason was the low-key and unassuming demeanor of the choice for job, Mukasey, a retired federal judge. To the extent that any members of the Senate Judiciary Committee arrived Wednesday loaded with buckshot to fire at the nominee, they were quickly disarmed by the overall mood of civility that took hold once Mukasey began his testimony.

Many senators spoke glowingly about Mukasey in terms of the man he likely will replace, former Atty. Gen. Gonzales, even though Mukasey took few hard-and-fast stands on polarizing issues of the day, such as the future of the Guantanamo Bay prison for terrorism suspects in Cuba and the power of the government to obtain wiretaps without warrants.

But Mukasey attempted to make clear straight away that he, as one senator labeled him, was "a man of the law, not a man of politics."

He pledged his independence from the White House, going as far as to say he would resign if faced with the prospect of the president ignoring his decision over the illegality of a potential anti-terrorism program. "I will either talk him out of it or push away from the table and leave," Mukasey said.

He promised that hiring decisions within the department would be made without regard to party affiliation.

And he quickly distanced himself from Gonzales by explicitly disavowing a pair of Justice Department memos that authorized use of abusive tactics to interrogate suspected terrorists. Mukasey said that policy "was worse than a sin. It was a mistake."

Mukasey noted that the United States was bound by its own laws and treaty obligations to prohibit torture, but he went further, saying, "We don't torture, not simply because it's against this or that law or this or that treaty. Soldiers of this country liberated concentration camps and photographed what they saw there as a record of the barbarism they opposed."

By the end of the day, it seemed that Mukasey had done nothing to jeopardize his already strong chances for confirmation. "I think it's been a very good day," Sen. Jeff Sessions, R-Ala., a former federal prosecutor, said late in the afternoon. "I think it is time for a steady hand. A professional."

What sparks there were flew early. Pressed by Sen. Arlen Specter, R-Pa., as to whether Guantanamo detainees should be able to challenge their detentions by filing habeas corpus actions in federal court, Mukasey said he couldn't comment because the matter is currently before the Supreme Court.

"Judge Mukasey, you're punting now," Specter said.

Later in the day, Mukasey said he would recommend to the president that the detainees not be given "any more rights than they already have."

Sen. Herb Kohl, D-Wis., attempted to push Mukasey to agree that the detention facility at Guantanamo should be closed.

But while declaring that "there are substantial problems with Guantanamo, both of reality and of perception," Mukasey would commit only to studying the issue after assuming office and then giving the president a recommendation. He noted later that he didn't believe the detainees were being mistreated.

That was the tack Mukasey took toward issues surrounding domestic eavesdropping as well. Mukasey repeatedly warned the committee that because he hadn't been confirmed, he had no access to classified details about the government's anti-terrorism programs and couldn't provide an opinion about their legality.

He did, however, note that the president may have the legal authority to put in place such an eavesdropping program beyond the limits set by Congress in the Foreign Intelligence Surveillance Act. And he suggested that as a matter of constitutional law, the prohibition against unreasonable searches and seizures could be more "flexible" when intelligence-gathering is involved versus the collection of criminal evidence.

"I find your equivocation troubling," said Sen. Russ Feingold, D-Wis..

Feingold also wondered if Mukasey had been too dismissive of critics of the USA Patriot Act, portions of which, he noted, had been declared unconstitutional by three federal judges.

"What I had in mind is people who used (the act) as a shorthand for everything that terrified them, regardless of whether it was in the statute or not," Mukasey clarified.

During one break in the hearing, Mukasey's cautious posture was defended by Sen. Charles Schumer, D-N.Y., a home-state supporter of the judge who introduced him to the committee earlier in the day.

"You could look it as a dodge or you could look at is as the only answer a careful lawyer could give, and Judge Mukasey is a careful lawyer," Schumer said.

But even as Mukasey came down on several issues on the side of national security, he said that the administration had to make a better case to the American public and the world about the legal basis for its anti-terror policies.

"We need to be clear what it is we're doing and why it is we're doing it," Mukasey said.

He praised two recent critics of the White House, former deputy attorney general James Comey and former Justice Department lawyer Jack Goldsmith, who recently wrote a book detailing divisions within the administration over the legality of some anti-terror tactics. Mukasey called the book "superb."

After the hearing recessed for the day, Judiciary Committee chairman Patrick Leahy, D-Vt., expressed satisfaction with Mukasey's testimony, saying there was a "marked difference" between the judge's appearance that day and Gonzales' time in front of the committee. The hearing is expected to conclude Thursday.