When Alberto Gonzales was up for confirmation as attorney general in 2005, Sen. Patrick Leahy asked him whether he believed that the president, as commander in chief, has the authority to "override domestic and international laws prohibiting torture" and "immunize from prosecution anyone ... who commits torture under his act."
Gonzales' not exactly responsive response: "First of all, Senator, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
Leahy: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?
Gonzales: Sir, again ...
Leahy: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court. You've been the president's counsel. You've studied this issue deeply. Do you agree with that conclusion?
Gonzales: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle. Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that, in fact, a president had the authority under the Constitution to ...
Leahy, who ultimately cut Gonzales off and accused him of filibustering, put pretty much the same question to Michael Mukasey today. "Is there a commander-in-chief override?" Leahy asked.
"Not that I'm aware of," Mukasey said.
Strangely, Mukasey wasn't nearly as forthcoming when Sen. Arlen Specter asked him for his views on some of the legal rights of detainees. Mukasey begged off, saying the issue is currently pending before the Supreme Court -- a reasonable punt coming from someone nominated for a seat on the court, not so much for someone who's going to be expected to enforce the law while awaiting the court's decision.