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Letter to the editor

On Day 2, Mukasey sets a new tone on terror tactics

By WASHINGTON POST
Published October 19, 2007

WASHINGTON - President Bush's choice for attorney general, Michael Mukasey, embraced some of the administration's most controversial legal positions Thursday, suggesting that Bush could ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws.

Mukasey struck a different tone on the second and final day of his confirmation hearings, after pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president could not override constitutional and legal bans on torture or inhumane treatment of prisoners.

His shift prompted an unexpected clash with key Democrats on the Senate Judiciary Committee, although none said that the confirmation was in question.

Mukasey aroused Democrats' concerns by testifying that there may be occasions when the president's powers as commander in chief could trump a federal law requiring that a special court approve intelligence-related wiretaps.

That answer jibes with one of the legal rationales used by the Bush administration in defense of its controversial Terrorist Surveillance Program, under which the National Security Agency eavesdropped on calls between persons in the United States and those overseas without first securing a court warrant.

Mukasey also repeatedly demurred when asked whether an interrogation technique that involves simulated drowning, known as water boarding, constitutes torture and is, therefore, illegal. "I don't know what's involved in the technique," Mukasey said. "If water boarding is torture, torture is not constitutional."

"That's a massive hedge," responded Sen. Sheldon Whitehouse, D-R.I. "I mean, it either is or it isn't."

Mukasey did not clarify his remark.

[Last modified October 19, 2007, 01:03:28]