Mukasey Rejects Call for CIA Tape Details

The Washington Post reports:

Attorney General Michael B. Mukasey today sharply rebuffed congressional demands for details about the Justice Department's inquiry into the destruction of CIA interrogation tapes, saying that providing such information would make it appear that the department was "subject to political influence."

In letters to the leaders of the Senate Judiciary Committee and others, Mukasey also reiterated his opposition to appointing a special prosecutor to the tapes investigation, saying he was "aware of no facts at present" that would require such a step.

"At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice," Mukasey wrote. "Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied."

One letter was sent to Sens. Patrick J. Leahy (D-Vt.) and Arlen Specter (R-Pa.), the leaders of the Senate Judiciary Committee. Similar correspondence was sent to Senate Majority Whip Richard Durbin (D-Ill.) and to House Judiciary Chairman John Conyers (D-Mich.) and other House Democrats.

The three letters represent an attempt by Mukasey to push back against growing pressure from lawmakers, primarily Democrats, who have showered the Justice Department with demands for investigations or information on topics ranging from the baseball steroids scandal to allegations of rape by a former military contractor employee.

The letters also are an assertive move by the new attorney general, who was confirmed last month with the lowest level of Senate support in the past half century because of his refusal to say whether a form of simulated drowning known as waterboarding amounts to torture under U.S. law.



Mukasey replaced former attorney general Alberto R. Gonzales, who left office in September after the furor over his handling of the firings of nine U.S. attorneys and allegations that he misled Congress in sworn testimony.

The CIA disclosed last week that it destroyed videotapes in 2005 depicting interrogation sessions for alleged al-Qaeda operatives Zayn al-Abidin Muhammed Hussein, commonly known as Abu Zubaida, and Abd al-Rahim al-Nashiri. Administration officials have said that lawyers at the Justice Department and the White House, including former counsel Harriet E. Miers, advised the CIA against destroying the tapes but that CIA lawyers ruled their preservation was not required.

The Justice Department announced Saturday it had joined the CIA's inspector general in launching a preliminary inquiry into the tape destruction, and prosecutors asked the CIA to preserve any related evidence.

Leahy and Specter asked Mukasey on Dec. 10 for "a complete account of the Justice Department's own knowledge of and involvement with" the tape destruction. The two senators included a list of 16 separate questions, including whether the Justice Department had offered legal advice to the CIA about the tapes or had communicated with the White House about the issue.

Durbin had sent a letter to Mukasey Dec. 7 asking whether an investigation into the tape destruction would be pursued. Conyers and three other House Democrats authored a similar letter on the same day.

Mukasey wrote to the lawmakers that Justice "has a long-standing policy of declining to provide non-public information about pending matters.

Beyond Mukasey's Confirmation, White House Liability Issues Loom Large

At Huffington Post, Elizabeth Holtzman writes:

Though it failed to send his nomination the way of Robert Bork, Attorney General nominee Michael Mukasey's evasiveness on the definition of torture has done something historic. It has made it unmistakably clear to mainstream observers that the President may be criminally liable for violating anti-torture laws. Criminal liability of this White House will have wider repercussions than Mr. Mukasey's confirmation. It will reverberate through his tenure as Attorney General, and beyond the end of the Bush administration.

We now know the reason why Mr. Mukasey refused to acknowledge that waterboarding meets the legal definition of torture, or at the very least cruel, degrading and inhuman treatment clearly had nothing to do with not being briefed about the procedure. If he didn't know at the time of the Senate committee hearing, he certainly learned afterwards that the US considered waterboarding criminal and prosecuted it for at least a century. The real reason, as to mainstream news analysts now acknowledge, was that publicly admitting waterboarding is torture or cruel and inhuman would have put the President in jeopardy of criminal charges.

The War Crimes Act of 1996 makes cruel, inhuman and degrading treatment of detainees a violation of the Geneva Conventions and a federal crime. In addition, a 1994 law, 18 USC Section 2340 (a), makes it a federal crime to engage in torture outside the US, it also applies to those who conspire with (or aid and abet or order) torture outside the US. Both statutes apply to any US national, including the President, the Vice President and other top officials, as well as subordinates, such as CIA officers or other US personnel. If the President ordered, directed or authorized waterboarding or other forms of torture or mistreatment, he may have violated these laws. They carry the death penalty in cases where victim dies. In such cases there is no statute of limitations, so the President could be subject to prosecution for the rest of his life.

Some contend that imposing criminal liability for acts performed in the heat of combat is wrong and that we can't hold the administration to 20/20 hindsight. But we know these acts were not spontaneous, but part of a premeditated pattern of legal manipulation dating back years. At least since 2002, President Bush, Attorney General Gonzales and possibly others including the Vice President knew that torture and detainee mistreatment entailed criminal liability, which they sought to defuse with novel legal theories and retroactive suspensions of established law.

In a February 2002 memo, then White House counsel Alberto Gonzales warned President Bush about exposure to criminal liability under the War Crimes Act, mentioning the danger that future independent counsels or prosecutors might seek to enforce the law (they generally prosecute top government officials, including presidents). He therefore recommended opting out of the Geneva Conventions, famously calling them "obsolete." His theory was that if the Conventions didn't apply, then the War Crimes Act wouldn't apply, so no prosecutions could be brought. The President accepted Gonzales' theory and suspended the Conventions 's protections for suspected Al Qaeda detainees.

But in June 2006 the Supreme Court rejected this theory and held the Geneva Conventions applicable to the treatment of all detainees, leaving the President open to liability for violating the War Crimes Act. So in October 2006 the White House effectively pardoned itself by slipping a little-noticed provision into the Military Tribunals Act, conferring effective immunity from the War Crimes Act on high-level officials by making it retroactively inoperative, from 1996 to 2006. Public attention was focused on habeas corpus and other controversial provisions in the bill, so it passed more or less unscrutinized.

Still, holes remain in the legal barricades the Bush administration has tried to erect around itself. Even if immunity from prosecution under the War Crimes Act stands, it only applies through 2006, not for mistreatment of detainees after that. And the 1994 anti-torture law applies throughout.

As Attorney General, Mr. Mukasey can try to plug these holes. He may shield President Bush and others from criminal liability; he may resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

Senate Judiciary Committee Approves Mukasey Nomination

Senators Dianne Feinstein, Russ Feingold and Chuck Schumer after the vote on Tuesday.

The NY Times reports:

The Senate Judiciary Committee voted on Tuesday to approve the nomination of Michael B. Mukasey as attorney general despite opposition from most of the committee’s Democrats over Mr. Mukasey’s refusal to label a harsh interrogation technique used on terrorist suspects as torture.

Protesters opposed the Mukasey nomination and votes of two Democratic senators.
The vote, 11 to 8, with two Democrats joining all of the committee’s Republicans in supporting Mr. Mukasey, all but assured him of final confirmation by the full Senate. The Senate’s Democratic leaders are expected to schedule a vote by next week.

Mr. Mukasey, a retired federal judge from New York, ultimately owed his approval by the Judiciary Committee to the two Democrats who broke with their party to support him, Senators Dianne Feinstein of California and Charles E. Schumer, a fellow New Yorker who had initially recommended Mr. Mukasey to the White House.

The nomination of Mr. Mukasey was almost derailed by his refusal at his confirmation hearings to define as torture the interrogation technique known as waterboarding, which simulates drowning and is reported to have been used by the Central Intelligence Agency on a handful of Qaeda leaders since the Sept. 11 terror attacks.

In a letter to senators last week, Mr. Mukasey said the practice of waterboarding was “repugnant” but added that he could not judge its legality until he had been given access to classified information about interrogation techniques.

The White House welcomed the Judiciary Committee’s vote and urged that the nomination be moved quickly to the Senate floor. “Judge Mukasey has clearly demonstrated that he will be an exceptional attorney general at this critical time,” the White House spokeswoman, Dana Perino, said Tuesday.

Even some of Mr. Mukasey’s supporters said at the hearing to vote on the nomination that they were troubled by the way Mr. Mukasey handled questions about waterboarding, which the United States has fiercely condemned when carried out by other nations and had prosecuted as a war crime after World War II.

“I understand and greatly respect the view of some of my colleagues that the torture question trumps all other considerations,” Mr. Schumer said. But in explaining his vote for the nomination, Mr. Schumer said rejection of an otherwise highly praised nominee like Mr. Mukasey would allow the White House to appoint a caretaker attorney general who would not end the management turmoil and political scandals that plagued the Justice Department under Attorney General Alberto R. Gonzales.

“Judge Mukasey would be more likely than a caretaker to find on his own that waterboarding is illegal,” Mr. Schumer said.

In voting against Mr. Mukasey, the committee’s chairman, Patrick J. Leahy, and other Democrats portrayed their opposition as a defining moment for Congress in standing up to the Bush administration in upholding basic human rights and constitutional values in battling terrorism.

“America, the great and good nation that has been a beacon to the world on human rights, does not torture and should stand against torture,” Mr. Leahy said.

Senator Richard J. Durbin of Illinois, the Senate’s No. 2 Democratic leader, accused Mr. Mukasey of a “legal dodge” in refusing to repudiate “a cruel, abusive technique that has been regarded as torture in the civilized world for over 500 years.”

“When the history of this time is written, the issue of torture will define America’s values in the age of terrorism,” he continued. “Judge Mukasey’s responses to our questions on the issue of torture make it clear that he does not understand the challenge of this moment in history.”

The committee’s ranking Republican, Arlen Specter of Pennsylvania, said he had also been disturbed by Mr. Mukasey’s responses to the committee’s questions on torture, as well as on the nominee’s embrace of the Bush administration’s expansive view of the powers of the executive branch in wartime.

Mr. Specter said Mr. Mukasey’s assertion that he could not address the legality of waterboarding because he had not been briefed about it was “an excuse, and a flimsy excuse.”

But he said he decided to support the nomination after talking on Monday with Mr. Mukasey, who said he believed that if Congress outlawed waterboarding, which the Senate is now considering, the president would have no authority to overrule it. Mr. Specter said: “All factors considered, I think that the balance is decisively in favor of confirming Judge Mukasey. And I look forward to Congressional consideration of this issue of waterboarding. We’re the people who ought to decide it.”

Schumer & Feinstein Coordinate Efforts To Thwart Democrats' Base

The Hill reports:

The coordinated statements released late Friday afternoon by two Democratic senators that they would break ranks and support President Bush’s attorney general nominee largely muted opposition from a Democratic base that has become increasingly frustrated with Congress, activist leaders said Monday.

Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) effectively thwarted plans by the activist left to use the weekend to mobilize ahead of Tuesday’s Judiciary Committee vote and pressure wayward senators to reject the nominee, activists said.

“It was a surprise attack,” said Caroline Fredrickson, director of the Washington legislative office for the American Civil Liberties Union, which wants the Judiciary Committee to defeat the nomination. “There was a limited opportunity to say much about what Schumer and Feinstein had done because the timing was very cleverly calculated to avoid scrutiny.”

With the support of Schumer, Feinstein and the committee’s nine Republicans, Mukasey has garnered enough support to clear the panel and move to the Senate floor.

Before Feinstein’s announcement, sent to the media by e-mail at about 4:28 p.m., the nomination had seemed in doubt, especially after Judiciary Chairman Patrick Leahy (D-Vt.) announced his opposition to Mukasey at a 3 p.m. news conference in Burlington, Vt. Leahy became the fifth Judiciary Committee Democrat to announce his opposition over Mukasey’s refusal to state explicitly that the interrogation technique known as waterboarding constitutes torture.

Hours before Leahy’s press conference, however, Schumer in a telephone call already had laid out his thoughts to the chairman and also relayed a message that Feinstein had planned to support the nominee, according to aides.

But Schumer and Feinstein withheld announcing their decisions until late that afternoon. For Schumer, a decisive meeting came later in the day, around the same time as Leahy’s press conference. Mukasey assured him he would enforce any law Congress passes to explicitly state that certain interrogation techniques — such as waterboarding — are illegal under U.S. torture laws.

“Judge Mukasey is a lawyer’s lawyer. He will not leap to quick judgments,” Schumer said in his statement. “When we want him to do so, such as on torture, we will be disappointed. But when he resists those in the administration who want quick and facile answers . . . it is they who will be disappointed.”

The New Yorker, one of the most outspoken critics of the Bush administration, had been in an awkward position because he recommended Mukasey for the post before Democratic opposition grew. Both Schumer and Feinstein said they believed a Mukasey Justice Department would be markedly better than the tumultuous tenure of the resigned Alberto Gonzales.

Feinstein had made up her mind Thursday that she would support the nomination, but her office was still finalizing a statement when they caught wind of Schumer’s decision on Friday, one of her aides said. They decided to withhold the statement until Schumer was ready to make his announcement after both his afternoon meeting with Mukasey and the Leahy press conference. She followed up with a guest column explaining her views in Saturday’s edition of the Los Angeles Times.

“Judge Mukasey’s answers were quick and to the point, and reflected an independent mind,” Feinstein said in the column. “I truly believe he will be a strong advocate for the American people.”

By issuing coordinated statements late on a Friday afternoon, the senators employed the old Washington trick of breaking news at the end of a news cycle. Simultaneously, they undermined efforts by both the left and the right to pressure them into voting either for or against the nominee.

But they also undermined Leahy’s announcement, which would have dominated the weekend’s news. A Judiciary Committee aide, however, said there was no ill-will towards the senators for doing that.

“As you know, Sen. Leahy and Sen. Reid have not made this a caucus vote,
and as chairman, Sen. Leahy has not twisted any arms,” the aide said, referring to Senate Majority Leader Harry Reid (D-Nev.). What he does feel strongly about is knocking down, during this debate, the falsehood that waterboarding is not already torture and illegal.”

One leader of an activist group opposed to the nomination said the coordinated statements by the senators had a “chilling effect” on efforts to drum up opposition over the weekend.

“They wanted to decrease the intense focus on the two of them, and each reinforces the other by doing this together,” said Carl Tobias, a law professor at the University of Richmond. “It takes some of the heat off of each of them.”

Feinstein is familiar with being the lone Democrat to side with Republicans on the Judiciary Committee. She did so in August by joining all nine Republicans in voting for the nomination of Leslie Southwick for a lifetime seat on a New Orleans-based appeals court – over the strong objections of the other nine committee Democrats because of the nominee’s civil rights record.

Among some activist groups, the feelings are still raw with Feinstein for not joining Democrats to defeat the Southwick nomination in the committee. More broadly, the base has grown increasingly angry at Democrats for capitulating to Republicans on major issues, such as the Iraq war and Bush’s domestic spying program.

One leading Democratic activist expected Schumer to get earfuls during fundraisers for the Democratic Senatorial Campaign Committee, which he chairs. Also, one grassroots group, Democrats.com, has called for a moratorium on donations to the committee, which is trying to expand the Democratic majority in the Senate.

It’s unlikely that calls to cut off donating to the DSCC will pick up steam, activists said.

Even though Mukasey’s nomination is virtually assured, activists are still planning on airing their concerns. The Leadership Conference on Civil Rights is putting together a letter laying out its opposition and the concerns of a slew of other left-leaning groups.

Schumer and Feinstein Back Mukasey

The NY Times reports:

The nomination of Michael B. Mukasey to be attorney general seemed all but assured late this afternoon when Senators Charles E. Schumer and Dianne Feinstein, two Democrats on the Senate Judiciary Committee, announced that they would vote in favor of the nominee.

Mr. Schumer announced his support after meeting with Mr. Mukasey this afternoon. “Judge Mukasey is not my ideal choice,” Mr. Schumer said in a statement afterward. “However, Judge Mukasey, whose integrity and independence is respected even by those who oppose him, is far better than anyone could expect from this administration.”

The statement from Mr. Schumer of New York, and late word from the office of Senator Feinstein of California that she too would endorse Mr. Mukasey, virtually assured that he would win the backing of the Judiciary Committee when it meets on Tuesday, and in all probability confirmation by the full Senate.

There are nine Republicans on the Judiciary Committee, versus 10 Democrats. So with the support of Mr. Schumer and Ms. Feinstein, the numbers are on Mr. Mukasey’s side, even though Senator Patrick J. Leahy, the Vermonter who heads the Judiciary Committee, this afternoon became the fifth Democrat on the panel to announce that he would vote against the nominee.

Mr. Schumer said his decision had been “extremely difficult,” and that a big factor was Mr. Mukasey’s opinion, conveyed to him this afternoon, that “were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority.”

The responses of Mr. Mukasey, a former federal judge from New York City, to committee questions about the definition of torture in interrogating suspected terrorists, and the bounds of presidential authority, have been the main obstacles to his cause.

For Mr. Leahy, those questions have not been satisfactorily answered.

“I like Michael Mukasey; I wish that I could support his nomination,” Mr. Leahy said this afternoon in Montpelier, Vt. “But I cannot.”

The senator went on to say that “no American should need a classified briefing to determine whether waterboarding is torture.”

The four other committee Democrats who have announced their opposition are Senators Edward M. Kennedy of Massachusetts, Joseph R. Biden Jr. of Delaware, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island. But it seems clear now that there is not enough Democratic opposition to be fatal to the nomination.

The declarations of Senators Feinstein and Schumer would be enough to combine with the votes of the body’s 49 Republicans to win the nomination for Mr. Mukasey, barring some startling turn of events in the next several days.

Another committee Democrat, Senator Russell D. Feingold of Wisconsin, said today that he was undecided. “He may be the best nominee we can get from this administration,” Mr. Feingold said, calling Mr. Mukasey “a marked improvement” over former Attorney General Alberto R. Gonzales.

The remaining two Democrats on the panel — Herb Kohl of Wisconsin and Benjamin L. Cardin of Maryland — have yet to state their positions in advance of the committee vote.

All four Democrats running for president have said they will vote against Mr. Mukasey. In addition to Mr. Biden, Senators Hillary Rodham Clinton of New York, Barack Obama of Illinois and Christopher J. Dodd of Connecticut have said they will vote “no.”

President Bush showed his concern by campaigning again today for his embattled nominee, envisioning a “fight on the Senate floor coming next week,” and declaring that Mr. Mukasey must win for the good of the country.

“He’s a good man, he’s a fair man, he’s an independent man, and he’s plenty qualified to be the attorney general,” Mr. Bush said at the airport in Columbia, S.C. “And I strongly urge the United States Senate to confirm this man, so that I can have an attorney general to work with to protect the United States of America from further attack.”

Mr. Bush spoke just before heading to a campaign fund-raiser for Senator Lindsey Graham, a member of the Judiciary Committee, who is running for re-election.

Mr. Bush began his campaign to save the candidacy of Mr. Mukasey on Thursday, defending him in a speech and in an Oval Office interview, where he complained that Mr. Mukasey was “not being treated fairly” on Capitol Hill.

Leahy Announces Intention to Vote Against Mukasey

The Boston Herald reports:

The chairman of the Senate Judiciary Committee said Friday he won’t support Attorney General nominee Michael Mukasey, further undercutting his chances for a quick confirmation, because Mukasey hasn’t taken a firm enough stand against torture.

"No American should need a classified briefing to determine whether waterboarding is torture," said U.S. Sen. Patrick J. Leahy, D-Vt. He planned an afternoon news conference to make the announcement in Burlington.

Sliding support among Democrats on the panel, which will vote on the nomination Tuesday, makes it somewhat less likely the full Senate will send Mukasey to a Justice Department that has been leaderless for weeks.

Leahy became the first of the panel’s 10 Democrats so far to say they will not support him.

Once viewed as a sure thing, Mukasey’s nomination was threatened during hearings last month in which he repeatedly refused to say whether he considers the simulated drowning interrogation technique known as waterboarding to be a form of torture.

Torture is considered a war crime by the international community and waterboarding has been banned by the U.S. military, but CIA interrogators are believed to have used the technique on terror detainees as recently as a few years ago.

Mukasey has called waterboarding personally "repugnant," but said he did not know enough about how it has been used to define it as torture. He also said he thought it would be irresponsible to discuss it since doing so could make interrogators and other government officials vulnerable to lawsuits.

"I am eager to restore strong leadership and independence to the Department of Justice," said Leahy. "I like Michael Mukasey. I wish that I could support his nomination. But I cannot. America needs to be certain and confident of the bedrock principle— deeply embedded in our laws and our values — that no one, not even the president, is above the law."

Mukasey, a retired federal judge, was nominated in September to replace former Attorney General Alberto Gonzales, who resigned after months of questions about his honesty in congressional testimony and whether he allowed the Justice Department to become too entwined in White House politics.

Mukasey needs support from at least one Democrat on the 19-member Senate Judiciary Committee for his nomination to be sent to the full Senate for a vote. The four Democrats who sit on the panel and already have said they will oppose him are: Joe Biden of Delaware, Edward M. Kennedy of Massachusetts, Richard Durbin of Illinois and Sheldon Whitehouse of Rhode Island.

Earlier Friday, President Bush renewed his plea for Mukasey’s confirmation.

"He’s a good man. He’s a fair man. He’s an independent man, and he’s plenty qualified to be attorney general," Bush said of Mukasey, just after landing in Columbia, S.C., on his way to a political fundraiser and to give a speech at Fort Jackson.

On Thursday, Bush had warned that the Justice Department would go without a leader in a time of war if Democrats thwarted Mukasey.

Bush also said that if the Judiciary Committee were to block Mukasey because of his noncommittal stance on the legality of waterboarding, it would set a new standard for confirmation that could not be met by any responsible nominee for attorney general.

Another Democrat on the Judiciary Committee who was critical of Mukasey during the hearings, Sen. Russ Feingold of Wisconsin, said he has not yet decided how he’ll vote.

"He may be the best nominee we can get from this administration in this respect," Feingold said of Mukasey. "But I am concerned about his views on executive power, and I am weighing whether his answers to questions in that area adequately demonstrate a commitment to the rule of law."

Bush says, "No Attorney General If Not Mukasey"

The LA Times reports:

President Bush sought to save Michael Mukasey's troubled nomination for attorney general Thursday, defending the retired judge's refusal to say whether he considers waterboarding torture and warning of a leaderless Justice Department if Democrats don't confirm him.

"If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general," Bush said in a speech at the Heritage Foundation, a conservative think tank.

"That would guarantee that America would have no attorney general during this time of war," the president said.

Nonetheless, opposition continued to grow. Sen. Edward M. Kennedy, D-Mass., became the fourth of 10 Democrats on the 19-member Judiciary Committee to declare he will vote against Mukasey when the panel decides Tuesday whether to endorse or reject his nomination.

Kennedy said Mukasey's unwillingness to say that waterboarding, an interrogation technique that simulates drowning, is torture increases the chances that it will be used against U.S. troops.

"Judge Mukasey appears to be a careful, conscientious and intelligent lawyer and he has served our country honorably for many years," Kennedy said in a Senate speech announcing his opposition. "But those qualities are not enough for this critical position at this critical time."

Judiciary Committee Chairman Patrick Leahy, D-Vt., planned to announce Friday in his state how he will vote next week.

Bush framed Mukasey's nomination with the familiar theme of national security and the attorney general's role in it.

"It's important for Congress to pass laws and/or confirm nominees that will enable this government to more effectively defend the country and pursue terrorists and radicals that would like to do us harm," the president said earlier Thursday during a rare Oval Office session with reporters.

The comments raised questions about whether Bush would nominate anyone else to succeed Alberto Gonzales as the nation's top law enforcer. Bush could bypass Congress by filling the job with someone serving in an acting capacity or appointing someone while lawmakers are in recess to serve out the last 14 months of his administration.

Asked if Bush was saying he would not nominate anyone if Mukasey is rejected, White House spokeswoman Dana Perino said: "We don't believe it would come to that. No nominee could meet the test they've presented."

There is a way for Mukasey to get a full Senate vote even if committee Democrats are united in opposing him. The Senate Judiciary Committee could agree to advance the nomination with "no recommendation," allowing Mukasey the chance to be confirmed by a majority of the 100-member Senate. Several vote-counters in each party said Mukasey probably would get 70 "yes" votes.

Despite that prospect, opposition to Mukasey was growing among Senate Democrats. Most cited his refusal to say whether waterboarding is torture and thus illegal under U.S. and international law.

In a letter to Senate Democrats this week, Mukasey said waterboarding is "repugnant to me" but added he wanted to review legal and other issues surrounding it before saying whether it is torture.

Democratic Sens. Joe Biden of Delaware, Sheldon Whitehouse of Rhode Island and Dick Durbin of Illinois said this week they will vote "no" in committee. Assuming all nine of the panel's Republicans vote for Mukasey, only one Democrat would have to side with the president for the nomination to move to the full Senate with a favorable recommendation.

So far, the committee's other Democrats have declined to announce their positions. That includes Mukasey's chief Democratic sponsor, Sen. Chuck Schumer, D-N.Y.

Majority Leader Harry Reid, D-Nev., told reporters he could not guarantee a full Senate vote if the nomination fails in committee.

"I really believe in the committee process," said Reid, who has not said how he would vote. "If I'm asked by members of the committee to stay out of the fray, I am willing to do that."

Two Republicans troubled by Mukasey's initial answers said they would vote for him in the full Senate.

But in a letter to Mukasey, GOP Sens. John McCain of Arizona and Lindsey Graham of South Carolina urged the nominee never to let waterboarding be used if he were to become attorney general.

Undecided Schumer May Be Key to Mukasey's Chances

Judiciary Chairman Endorsed Justice Nominee but Says He, Like Other Democrats, Is Concerned About Torture Question

Sen. Charles Schumer, foreground, said he is "wrestling" with the decision of whether to recommend a full Senate confirmation vote for Michael Mukasey. Schumer talked to reporters about Mukasey and other topics yesterday with fellow Senate Democrats, from left, Harry Reid, Richard Durbin and Patty Murray. (By Melina Mara -- The Washington Post)

The Washington Post reports:

As Democratic opposition builds over attorney general nominee Michael B. Mukasey, no Democratic lawmaker has found himself in a tighter spot than Sen. Charles E. Schumer (N.Y.), who had eagerly recommended the former federal judge as a consensus candidate.

After Mukasey refused to say whether an interrogation technique called waterboarding amounts to illegal torture, Schumer has watched a growing number of his colleagues announce their opposition to the judge.

Schumer, who has remained uncharacteristically quiet throughout the furor, said in an interview yesterday that he is now "wrestling" with whether to vote against a nomination that he was instrumental in bringing about. He compared the controversy to the 2005 nomination battle over Chief Justice John G. Roberts Jr.

"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."

But Schumer said minutes later that his mind is not made up: "He's the best we can get, but that doesn't necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no."

The outcome of Schumer's internal struggle could prove pivotal to Mukasey's chances, as a growing number of Democrats, including four other members of the Judiciary Committee, have announced their opposition to the nominee, as have all four senators who are seeking the Democratic presidential nomination.

The deteriorating political situation led President Bush yesterday to mount a vigorous defense of Mukasey, saying that Democrats are subjecting the former federal judge to standards that no candidate for attorney general could meet.

"It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on his willingness to go on the record about details of a classified program he has not been briefed on," Bush said in a speech at the Heritage Foundation in Washington. "If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general. That would guarantee that America would have no attorney general during this time of war."

But key Democrats continued to signal opposition to the suddenly controversial nominee. Senate Majority Leader Harry M. Reid (D-Nev.) said his position is not "much of a secret," saying Mukasey's attempt at explaining his view on waterboarding has left his nomination in doubt.

Sen. Edward M. Kennedy (D-Mass.) announced his opposition yesterday, becoming the fourth Democrat on the Judiciary Committee to promise a no vote. Judiciary Chairman Patrick J. Leahy (D-Vt.), who originally predicted easy confirmation but has since become deeply critical of Mukasey, is expected to announce his position today in Vermont.

All nine Republicans on the committee are likely to support Mukasey, but if all 10 Democrats oppose the nominee, the confirmation would die in committee.

Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past. Should Schumer and Feinstein side with other Democrats in opposition, Judiciary Republicans are likely to seek to forward the nomination with a neutral or negative recommendation to the full Senate for a confirmation vote.

Schumer originally suggested Mukasey to head the Justice Department eight months ago, after the senator became the first Democrat to call for the resignation of then-Attorney General Alberto R. Gonzales over his handling of the firings of nine U.S. attorneys. Schumer, whose chief counsel is a former federal prosecutor in the Manhattan courts that were overseen by Mukasey, had also recommended him as a worthy Supreme Court candidate in 2005.

But Mukasey, who was sailing to an easy confirmation, alarmed many Democrats on Oct. 18 when he repeatedly refused to say whether waterboarding is torture. The technique, which simulates drowning, has been used by the CIA but is barred by the U.S. military and has been widely condemned as torture by human rights groups.

Mukasey tried to mollify Democrats by saying in a letter earlier this week that he found the technique personally "repugnant," but he reiterated that he could not determine whether it is illegal without being privy to classified details.

Mukasey's response has been deemed insufficient by many Democrats and sparked an outcry among antiwar liberals who provided much of the political energy -- and financial contributions -- that propelled Democrats to the majority. Schumer, who chairs the Democratic Senatorial Campaign Committee, needs those supporters as he tries to expand the majority next year. One group, Democrats.com, began an e-mail campaign last night urging its supporters to withhold donations to Schumer if he votes for Mukasey.

During yesterday's telephone interview, Schumer said that his decision will hinge largely on whether he believes Mukasey would be independent of the White House. He said that was "called into question" by some of Mukasey's views.

"The question is whether he will show the requisite independence," Schumer said. "That's what I want to clear in my own head. . . . If Congress passes a law forbidding waterboarding, would he enforce that?"

Schumer's colleagues are keenly aware of his awkward position. In announcing his opposition to Mukasey on Wednesday, Majority Whip Richard J. Durbin (D-Ill.) said he could not predict the outcome of the close vote and noted the undecided posture of Schumer, with whom Durbin lives in a group house of Democrats. "I haven't polled my colleagues, including the one I live with," Durbin said.

Some Republicans, meanwhile, are openly chortling at Schumer's dilemma.

"Mukasey and Schumer, aren't they partners? Wasn't that the Schumer pick?" Sen. Trent Lott (R-Miss.) said yesterday. "It's become a problem for him."

A Lesson For Mukasey

Kaj Larsen on, Why I Had Myself Water-Boarded:



As a journalist for Current TV, a former military officer, and a student of public policy I have been involved in the debate about the War on Terror from the frontlines in Afghanistan to the policy discussions of academia. In the spring of 2006 a battle was brewing between the Bush Administration and some influential members of Congress over the use coercive interrogation techniques. The conflict over what techniques were legally and morally permissible had been a subtext of the War on Terror for years, but for the most part the debate was occurring inside of the intelligence community, the human rights community, and in small legal circles. It was outside the purview of the American public.

By April of 2006 the debate about coercive interrogation and its most controversial technique, water-boarding, had started to spill into the headlines. I was in graduate school at the time. As I watched the debate unfold, and listened to both pundits and policymakers give their opinion on whether this technique constituted torture, I was struck by the strangeness of the debate. All of these people were lobbying opinions about a subject they had never seen or witnessed, and that struck me as problematic in a healthy democracy. See, in full disclosure I had a unique knowledge of water-boarding. I had the technique performed on me during my time in the service as part of my SERE training (Survival Evasion Resistance Escape). I, like all Special Forces operatives who deploy overseas, was sent to a training camp where we learned to resist interrogation and survive captivity, god forbid that ever happened to us overseas. Ironically, one of the many techniques we learned during this training was to assert our rights as told under Article III of the Geneva Convention. So, because I was familiar with water-boarding, I was intrigued by this national conversation that was going on about this thing that few people really understood. But, like many Americans, the pre-occupations of everyday life, for me the pressure of mid-terms and exams, pushed the controversy to the back of my mind.

Then, in mid March I traveled to Cambodia for Spring Break. While there I visited the Tuol Sleng (also known as S-21) prison in Phnom Penh. The Tuol Sleng prison had been converted to a museum and memorial for the victims of the Cambodian Genocide under the Pol Pot regime. As I walked through the museum and saw the photographs of the victims of the genocide, I was shocked to see a picture of the Khmer Rouge Water-boarding a Cambodian villager. At that moment I saw a throughline between the debate we were having domestically and the picture I was standing in front of. I was spurred into action, and upon my return to the United States, I decided to have myself water-boarded, this time on national TV, as a public service, so that this controversial technique could be judged in the court of public opinion.

Mukasey says, "Bush Can Ignore the Law"

Democrats Expected To Vote For Bush's Nominee For Attorney General
The Washington Post reports:

Attorney general nominee Michael B. Mukasey suggested today that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief.

Under sharp questioning about the Bush administration's warrantless eavesdropping program, Mukasey said there may be occasions when the president's wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps.

In such a case, Mukasey said, "the president is not putting somebody above the law; the president is putting somebody within the law. . . . The president doesn't stand above the law. But the law emphatically includes the Constitution."

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was "troubled by your answer. I see a loophole big enough to drive a truck through."

During a second day of hearings on his nomination, Mukasey defended several of the Bush administration's most controversial legal policies, prompting a drop in temperature in his previously warm relations with Democrats on the committee.

Mukasey, for example, endorsed the administration's views of expansive presidential authority in the use of executive privilege, saying it would be inappropriate for a U.S. attorney to press for contempt charges against a White House official protected by a claim of executive privilege.

Mukasey also demurred when he was repeatedly asked whether a simulated drowning technique known as waterboarding constitutes unlawful torture. Mukasey had strongly condemned the use of harsh interrogation tactics yesterday and said that the president could not order treatment that violated constitutional prohibitions.

But Mukasey said he could not elaborate on what techniques might be allowed, and specifically refused to answer questions from Democrats about whether waterboarding specifically was unconstitutional, saying he did know enough about what the technique entailed.

"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.

Mukasey's remarks stood in sharp contrast to his comments during his first day of testimony yesterday, when he stopped short of embracing the Bush administration's legal views on several important topics and criticized its policies or legal reasoning in several areas.

The apparent shift prompted criticism from several committee Democrats, who largely showered Mukasey with praise yesterday and have predicted that he will be easily confirmed to replace former attorney general Alberto R. Gonzales.

During a break in testimony, Leahy told reporters that he was concerned about a "sudden change" in Mukasey's answers regarding the limits of presidential power.

"There were far clearer answers yesterday than there were today," Leahy said.

Yesterday, Sen. Russell Feingold (D-Wis.) pressed Mukasey on the limits of federal surveillance law with little success. Today, after Mukasey more clearly embraced the argument that such a law might infringe on presidential authority, Feingold complained that Mukasey had gone from being "agnostic" to holding a "disturbing view."

"You suggest that I've gone overnight from being an agnostic to being a heretic; I haven't," Mukasey responded, though he did not elaborate.

Mukasey also amplified his opposition to a proposed federal shield law for journalists, which has been approved by the Judiciary Committee in the wake of several high-profile cases in which reporters were jailed or threatened with contempt charges for refusing to divulge sources. Mukasey said that the current system has worked "passably well" and that any problems could likely be solved by changes to internal Justice Department rules.

Mukasey, who worked briefly as a wire service reporter and later represented media organizations as an attorney in private practice, echoed Bush administration arguments that such a law could be used to protect journalists who also are acting as spies or terrorists.

Yesterday, Mukasey said that he would chart an independent path for the Justice Department after Gonzales's tumultuous tenure, testifying that he would not be afraid to disagree with the president and would resign rather than implement policies that he believed violated the Constitution.

Mukasey also said the president cannot use his powers as commander in chief to override prohibitions against using torture or cruel, inhuman and degrading conduct in the interrogation of prisoners.

"Are you prepared to resign if the president were to violate your advice and in your view violate the Constitution?" asked Sen. Arlen Specter (R-Pa.). Mukasey responded: "That would present me with a difficult but not a complex problem. I could either try to talk him out of it or leave."

These and other strongly worded remarks reflected the former federal judge and prosecutor's desire to position himself as an independent legal thinker who, unlike Gonzales, has no long-standing ties to the current White House. "I'm not a bashful person, and I'm not going to become a bashful person if I'm confirmed," Mukasey said late in the day.

But Mukasey also declined to directly answer some questions related to controversial surveillance, detention and interrogation issues, and he suggested that in some policy areas his views might differ little from those of his predecessor.

During a sparring session with Feingold, for example, Mukasey declined to say whether the president could order a violation of federal surveillance law.

Mukasey said he could not provide an informed analysis without being briefed on the classified program but noted that some lawyers think the law does not entirely limit the president.

"I find your equivocation here somewhat troubling," Feingold responded.

Mukasey also expressed conservative views on social issues as divergent as obscenity and immigration, saying he would consider more robust prosecution of those caught being in the country illegally.

Most of the committee's Democrats, including Leahy, yesterday nonetheless repeated earlier predictions that Mukasey will be confirmed easily and with strong bipartisan support. "I'm encouraged by the answers," Leahy told reporters.

Yesterday's session was interrupted for several hours by a congressional ceremony for the Dalai Lama.

Sen. Charles E. Schumer (D-N.Y.), who had recommended that the White House nominate Mukasey, said Mukasey needs to rescue the Justice Department from its "greatest crisis since Watergate."

Much of the praise for Mukasey was accompanied by barely disguised swipes at Gonzales. "I think it's time for a steady hand, for a professional," said Sen. Jeff Sessions (R-Ala.). Schumer was more critical, saying Gonzales "was not much more than a potted plant" as attorney general.

Gonzales, a longtime friend and confidant of President Bush, resigned in August amid allegations that he bowed to White House demands in the firing of nine U.S. attorneys and on controversial national security policies, and then misrepresented his role during testimony on Capitol Hill.

Gonzales, who has hired a private defense attorney, is under investigation by the Justice Department over whether he lied to Congress or improperly tried to influence a congressional witness.

Democrats had earlier threatened to hold up the Mukasey hearings until they received more documents from the White House related to congressional investigations of the prosecutor firings and other issues. Those demands were put on hold, but Democrats say they will not abandon their probes.

Mukasey avoided a question about whether he would allow a U.S. attorney to pursue contempt charges against the White House if it refused to hand over the documents at issue, as Justice Department procedures provide.

Mukasey, 66, was calm and soft-spoken during much of his testimony, witnessed in the hearing room by family members and friends, including former FBI director Louis J. Freeh. Leahy and other lawmakers described Mukasey as candid and direct compared with Gonzales, who was widely accused of giving vague and evasive testimony.

When questioned about a Justice Department legal opinion issued early in the Bush administration, and since rescinded, that narrowly defined the acts that constitute torture, Mukasey replied differently than Gonzales had at his own confirmation hearing in early 2005.

Although Gonzales had repudiated that document, he repeatedly declined to directly answer questions about the limits of executive branch legal authority to undertake harsh interrogation methods that could be used on terrorism suspects. Mukasey said flatly that the president's commander-in-chief powers do not give him the authority to order torture or cruel treatment, which are prohibited by U.S. laws and international treaties.

At the same time, Mukasey essentially agreed with Gonzales's contention that a president can find a law unconstitutional.

While Gonzales had strongly defended the detention of terrorism suspects at Guantanamo Bay, Cuba, Mukasey called it a "black eye" for the United States because "we are detaining people apparently without end." He also suggested that it would be difficult to close Guantanamo Bay soon and defended an earlier comment that prisoners there were treated better than many U.S. citizens.

Under questioning from Leahy, Mukasey promised to recuse himself from any investigations that might touch on the GOP presidential campaign of former New York mayor Rudolph W. Giuliani, a longtime friend and political ally. Mukasey also vowed to limit contact between Justice Department officials and "political figures," and to discourage bringing charges close to an election.

In response to questions about rising crime rates, Mukasey said he would consider reallocating resources for anti-gang programs and other efforts. The Justice Department has diverted funds and personnel from crime-fighting to focus on counterterrorism and immigration cases, shortchanging anti-gang and anti-crime efforts.

"We can't turn our society into something not worth preserving in order to preserve it," he said.

Dems Ask Michael Mukasey, "Is It Torture?"

The Associated Press reports:

In an intense exchange Thursday with three Democrats, President Bush's nominee for attorney general left the door open for allowing a terrorism-era interrogation technique that simulates drowning.

Michael Mukasey, a retired federal judge, issued highly-conditioned statements that so-called waterboarding violates the Constitution only if it is defined as torture.

The answer is unclear.

In an executive order this summer, Bush allowed the use of some harsh interrogation techniques but his administration refused to say whether waterboarding was among them. Congress has banned waterboarding as part of a detainee treatment law.

During Thursday's proceedings, Senate Democratic Whip Dick Durbin probed for Mukasey's opinion.

"I'm hoping that you can at least look at this one technique and say: that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said the Illinois Democrat.

"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey replied.

Under subsequent questioning by Chairman Patrick Leahy, D-Vt., Mukasey said the practice of waterboarding, if defined as torture, can't be permitted by the president.

"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.

Judiciary Committee members, most lawyers themselves, have little tolerance for parsing after earlier hearings in which then-Attorney General Alberto Gonzales on dozens of occasions either did not answer questions or blamed a faulty memory for not answering them.

"Is waterboarding constitutional?" pressed Sen. Sheldon Whitehouse, D-R.I. "It either is or it isn't."

Mukasey again demurred, saying he doesn't know what's involved in the technique.

"If it amounts to torture, it is not constitutional," the nominee replied.

"I'm very disappointed in that answer," Whitehouse said. "I think it's purely semantics."

The president himself has repeatedly said "We don't torture" and argued that intense interrogations are sometimes necessary to elicit information about terrorist plots.

The White House suggested Thursday that Mukasey's answers were vague because he does not know the specifics of the program.

"Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified," said White House spokesman Tony Fratto. "He would only be read-in to classified programs after being confirmed."

So far, Mukasey has told senators he will reject any White House meddling in Justice Department matters and resign if his legal or ethical concerns about administration policy are ignored. He also said he's resistant to passing a law shielding reporters from being forced to reveal their sources, saying it would be much easier to fix internal Justice Department practice if need be.

Majority Democrats, aided by some Republicans, have urged passage of a media shield because they say it would protect reporters and government whistleblowers who reveal improper or illegal official activity. Fifty news outlets, including The Associated Press, support the legislation.

The Bush administration has issued a veto threat, saying that subpoenas for reporters are relatively rare and that a shield would make it harder to track down leakers of classified information.

Mukasey said that he has reservations about the legislation because it sets too high a legal threshold for prosecutors to meet to overcome the shield. Proving that the disclosure is needed to prevent an attack is difficult in advance, the nominee said Wednesday.

The measure also pending defines a journalist too broadly and might inadvertently protect, for example, bloggers who are also spies or terrorists, Mukasey said.

Mainstream Media Unites Behind Mukasey for Attorney General

The Christian Science Monitor reports:


Michael Mukasey, President George Bush's choice to replace Alberto Gonzalez, whose office was criticized for its support of what the CIA has called "enhanced interrogation" techniques and opponents called torture, appeared to repudiate the use of such measures at the start of his confirmation hearings at which he also promised independence from the White House.

The apparent relaxing of US standards governing the treatment of prisoners since Sept. 11 has damaged America's standing around the world, and the issue is being closely watched abroad.

While Democrats in Congress expressed disappointment at some of Mr. Mukasey's answers, The New York Times reports that he did a good enough job to virtually guarantee his confirmation.

Democratic senators welcomed Mr. Mukasey's promise that he would impose new rules to limit contacts between political figures and the Justice Department. He also said ... the department's hiring [should] be done "on the basis of competence and ability and dedication and not based on whether somebody's got an 'R' or a 'D' next to their names."

Those remarks were clearly meant to distance Mr. Mukasey from the political scandals that engulfed the department during the tenure of Mr. Gonzales, who dismissed several United States attorneys around the country last year for what appeared to be political reasons.

Mr. Mukasey also pleased the Democrats who control the Judiciary Committee by saying that he considered torture of terrorist suspects to be illegal under American and international law and that the president did not have the authority to order it under any circumstances.

The Chicago Tribune says Mukasey "explicitly disavowed" the relaxation of standards regarding interrogation and detainees under Mr. Gonzalez.

He also quickly distanced himself from Gonzales by explicitly disavowing two 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 is 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."

Though Mukasey did not ever say so, some commentators believe he is signaling a new direction for the government.

Andrew Sullivan, a conservative columnist and blogger for the Atlantic Monthly, who has strongly opposed abusive interrogation methods, is hopeful about Mukasey, comparing his comments, particularly his remark that the US didn't record what went on in concentration camps so we could "duplicate what we opposed," to the position on the issue by Democratic Sen. Dick Durbin.

"Duplicate what we opposed"? Nazi concentration camps? Does that remind you of anyone?

"In a Senate floor speech Tuesday, [Senator Dick] Durbin cited an FBI report describing Guantanamo Bay prisoners chained to the floor in the fetal position without food or water and sometimes in extreme temperatures.

"If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control," he said, "you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime."

Is it not clear that Mukasey's and Durbin's point is exactly the same?

Other bloggers also believe Mukasey is committed to limiting executive power. Spencer Ackerman in a post at the Talking Points Memo blog, praised Mukasey's testimony.

Most significantly, Mukasey said that he is unaware of any inherent commander in chief authority to override legal restrictions on torture – a huge repudiation of Dick Cheney, David Addington and John Yoo's perspective on broad constitutional powers possessed by the president in wartime – or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.

The right-leaning New York Sun agrees with the assessment that Mukasey is a shoo-in for confirmation,but that once in office he could leave the Bush administration's legal strategy for the war on terror "badly bruised."

The risks the pick carries for the Bush administration were also on display. In addition to denouncing in blunt terms the so-called torture memo, which was later revoked, Judge Mukasey heartily endorsed the withering critique a former Justice Department official, Jack Goldsmith, has made of the administration's attempts to assert executive power without involving Congress.

Asked by Senator Schumer about Mr. Goldsmith's recently published book, "The Terror Presidency," Judge Mukasey replied, "I thought it was superb. ... I couldn't put it down. In a way, I was sorry when I finished."

The judge went on to make clear that he endorses Mr. Goldsmith's central thesis that the Bush administration's embrace of what Mr. Schumer called "unilateralism" was a mistake. "I would certainly suggest that we go to Congress whenever we can. It always strengthens the hand of the president to do that," Judge Mukasey said.

To be sure, senators still have questions about how far Mukasey would go in restraining the White House, particularly when it comes to assertions of "executive privilege," the Associated Press reports.

Chairman Patrick Leahy, D-Vt., said he would query the former federal judge on his views of the administration's position on executive privilege. The issue arose when presidential counsel Fred Fielding declared certain White House documents and information off-limits under the privilege.

Mukasey on Wednesday gave a hint of his posture on the issue. While he sees valid reasons for declaring executive privilege, his reaction to some of the White House's rationale was, "Huh?"

Ranking Republican Arlen Specter, R-Pa., said he also would have questions about whether Mukasey believes the Justice Department can live with a legal shield for reporters against being forced to reveal sources in federal court. Again, Mukasey gave a glimpse of his opinion a day earlier, saying he had significant concerns about the legislation pending in the Senate. But he did not endorse or reject the proposal.

White House to Give Senate Panel Surveillance Program Documents

The Washington Post reports:

The White House agreed yesterday to give Senate intelligence committee members and staff access to internal documents related to its domestic surveillance program in a bid to win Democratic lawmakers' support for the administration's version of an intelligence measure.

The move was meant in part to defuse a months-long clash between Congress and the Bush administration over access to legal memoranda and presidential decisions underpinning the Terrorist Surveillance Program, which allowed the government to eavesdrop without court warrants on communications between people in the United States and abroad when one of the parties is a terrorism-related suspect.

Some of the documents had been demanded by Senate Judiciary Committee members as a condition for considering the administration's nomination of former judge Michael B. Mukasey as the nation's 81st attorney general. Sen. Patrick J. Leahy (D-Vt.), the committee's chairman, dropped that condition weeks ago but said yesterday that he still wants to see the documents.

Leahy told reporters after a meeting with Mukasey yesterday that he nonetheless expects Mukasey "to be confirmed" after a nomination hearing today, at which Mukasey is to be escorted into the room by Leahy and the committee's ranking Republican, Sen. Arlen Specter (Pa.). Mukasey is to be formally introduced by Sens. Joseph I. Lieberman (I-Conn.) and Charles E. Schumer (D-N.Y.).

Schumer indicated after meeting separately with Mukasey yesterday that he expects the judge to promise to undertake a review of the department's legal justifications for the administration's counterterrorism policies, which are the subject of some of the documents made available to intelligence committee staff and members for review at the White House.

Mukasey has indicated that he strongly supports the administration's counterterrorism effort.

Committee member Dianne Feinstein (D-Calif.), who also sits on the Judiciary panel, said however that when one of her staff members reviewed the documents, "he wasn't impressed." She added that she was unsure whether the documents the staff member saw were exactly what Leahy was seeking.

Sen. Christopher S. Bond (Mo.), the intelligence committee's ranking Republican, was more positive. "We're getting the information I think we need."

But House Democrats, who plan to vote today on a bill that would restrict domestic surveillance powers more tightly than the administration wants, complained yesterday that they should have been permitted the same access.

"Although even these materials are far short of the information that Congress has requested for more than a year on this crucial subject, we are extremely disappointed that the available information is being withheld from the House," Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said in a letter yesterday to White House counsel Fred F. Fielding.

Besides trying to quiet congressional accusations of a coverup, the administration wants in particular to win support for a legal provision providing immunity for telecommunications companies that have been sued for violating privacy rights when they assisted the government's domestic surveillance effort.

White House spokesman Tony Fratto said that administration officials "routinely meet with members of Congress and their staffs to provide them with information they need when they are considering and drafting legislation." In this case, he said, members of the Senate intelligence panel "requested access to certain materials to assist their consideration" of relief for the companies.

In addition to seeking documents related to the surveillance program, Leahy has sought internal legal opinions related to torture issues involving terrorism suspects and testimony from White House advisers connected to the firing of nine U.S. attorneys last year.

Leahy said his questioning at the hearing today will be aimed at eliciting statements from Mukasey about the legality of torturing terrorism suspects and threats to the independence of federal prosecutors that impinge on their efforts to pursue cases regardless of political sensitivities. "How are you going to clean up this mess?" Leahy said he probably will ask Mukasey.

Mukasey has already sought to assure lawmakers in private that he will not let politics intrude on the department's decisions. "He will be light-years better than his predecessor," Leahy said, referring to former attorney general Alberto R. Gonzales, who resigned in late August after making a series of statements about the attorney firings and surveillance programs that were disputed by his former colleagues and lawmakers from both parties.