[See the section below regarding Feinstein's questioning of Mukasey on presidential power to detain American citizens with no charges and Congressional power to limit presidential war-making (here)]
The Senate Judiciary Committee today begins its confirmation hearing for Michael Mukasey, the Bush administration's nominee to replace Alberto Gonzales as Attorney General. I will live-blog the hearings here, and the comment section can be used for ongoing commentary as well (on this or any other topic). The hearings are being broadcast live on C-SPAN, here.
There is a two-prong problem with live-blogging Congressional proceedings, at least for me: (1) at some point, usually sooner rather than later, they become so boring, repetitive, petty and irritating that I can no longer bear to watch; thus, I make no promises about how long my "live-blogging" will last; (2) due to the same factors identified in (1), there is often not much of worth to say, and so I also make no commitments about the extent of the "live-blogging" even for the time when I can tolerate watching.
On a somewhat related note, later today I will be interviewing Cindy Cohn, the Legal Director of the excellent Electronic Frontiers Foundation, the lead counsel in the pending warrantless surveillance litigation against AT&T, regarding, among other things, the illegal nature of the telecom's behavior and the effects of telecom amnesty on our ability to learn what they did. I will post the interview later today or tomorrow morning. Christy Hardin Smith has the latest updates on the pending FISA issues.
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Following standard Senate tradition, Charles Schumer -- along with Joe Lieberman -- is presenting Mukasey to the Committee and defending him because they are both from New York (i.e., Schumer and Mukasey). Schumer is one of the most important Democratic members of the Senate Judiciary Committee. It seems rather improper for him to be the primary advocate of the Bush administration's nominee as Attorney General.
In doing so, Schumer hailed the "honorable conservative lawyers within the DOJ who have demonstrated allegiance to the rule of law," and "stood up to those who disrespected the Constitution." As examples, Schumer identified Jim Comey, Jack Goldsmith and "even John Aschroft." All of those individuals, however, certified the legality of the President's "Terrorist Surveillance Program," i.e., certified that the President possesses the legal power to break the law and spy on Americans without warrants. While some of their actions were commendable, even courageous, they are hardly beacons of the "rule of law" and Constitutional allegiance.
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Lieberman, who has known Mukasey for 43 years, assures the Committee that Mukasey has a "great sense of humor" and a "ready smile."
Lieberman also assures us that Mukasey is "a man of law, not a man of politics" -- is there any individual less suited to make that judgment than Joseph Lieberman?
And, says Lieberman, in the midst of our "war on Islamic fascism," Mukasey has ideal insight into "how to balance security and liberty." I ask the same question -- is there any individual less suited to make that judgment than Joseph Lieberman?
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Basically, Mukasey's confirmation is a fait accompli. They've decided, quite apparently, that he is Serious, Responsible, Independent, Trustworthy, etc. etc. ad Beltway nauseum. He might be those things, but that does not alleviate the need for aggressive, adversarial questioning.
They -- at least Leahy, who can be expected to set the tone -- are thus posing their questions in a rather cursory, dutiful and highly respectful way, and allowing him to answer with rather predictable and somewhat empty buzzphrases.
When Leahy asks him about torture, Mukasey proclaims: "we don't torture because that is not what this country is about." It is unclear if he means that we should not torture or that we do not, in fact, torture now (i.e., that the Bush administration's techniques are not "torture"). About the Bybee Memo -- which declared that the President has the power to override legal prohibitions on torture -- Mukasey says about that Memo: that "was worse than a sin; it was a mistake. It was unnecessary." He says: "the broad grants of authority were unnecessary." He seems to be saying there that there was no need for legal theories justifying tortue because we were never torturing anyway (hence, such theories were "unnecessary").
But when asked about specific interrogation methods -- head slapping, hypothermia, waterboarding -- Mukasey says he cannot say if such measures are legal because he has not been "read into" those programs. He will, he says, take a "strong look" at those questions once he is Attorney General. So that whole line of questioning is going to be meaningless -- he will repeat what Bush says ("we don't torture and never did") but refuses to comment on the critical question -- i.e., whether the interrogation measures in question constitute "torture" and are therefore illegal.
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Sen. Leahy: When asked by Leahy if the President has the power to violate FISA, Mukasey makes clear that he shares the right-wing view that the President does. He begins by citing the statement of Griffin Bell at the time FISA was enacted -- "Limits of FISA do not reach the limits of presidential authority. There is some gap between where FISA left off and where the Constitution permits the President to act." He thus espouses the DOJ's theory justifying warrantless eavesdropping even in the face of a statute making it illegal.
Again, though, he evades the real question by saying that he is not "read into" the "Terrorist Surveillance Program," and therefore can't comment on whether it was legal. But the whole point here is that public disclosures of what they did -- i.e, eavesdropping on Americans without warrants -- is sufficient to conclude that what they did was illegal.
But Leahy isn't following up on any of this. Their whole exchange seemed scripted and everything Mukasey said here was the same as what he told Leahy in private, which seems satisfactory to Leahy and, therefore, presumably to most Senate Democrats.
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Sen. Specter: As is often the case, the questioning by Specter -- a former prosecutor -- was reasonable aggressive and smart. But as is always the case, Specter will express all sorts of Senatorial "concern" about all sorts of things of which he then ends up being the principal supporter.
One of the most amazing all-time political quotes was when Specter, during the debate over the Military Commissions Act, said: "what the bill seeks to do is set back basic rights by some 900 years" because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. He then voted for it -- the bill that he said "set back basic rights by some 900 years." I'm not sure how that moment can be topped.
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Sen. Kohl: Herb Kohl is doing what he does in every hearing. He comes with a set of prepared questions and reads them, and then, after the "answer" -- even the most non-responsive replies, he proceeds to read the next one on his list. He literally never deviates from his script.
Wouldn't one expect -- even taking the most cynical view of political officials -- that someone who reaches the U.S. Senate should be able to listen to what someone says and then form a question about it that isn't already written down in advance (in fairness, as I wrote this, Kohl asked Mukasey: "Are you prepared to close Guantanamo?," and when Mukasey didn't answer, Kohl looked up from his notes and said, extemporaneously: "Are you prepared to close Guantanamo? Is that high on your list of priorities?"). So kudos to Sen. Kohl for speaking aloud without reading.
In case it's not evident, I'm reaching the outer limits of my tolerance point. These day-long hearings usually contain three to four meaningful points, at most, and it is far more efficient to find them by reading the transcript rather than subjecting oneself to eight hours of this.
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Sen. Hatch: As he always does, Sen. Hatch makes clear that -- even as we battle the Global Epic War of Civilizations against Islamo-fascism -- his primary concern is that the Department of Justice is not doing enough to battle the evils of what even he calls "mainstream, adult pornography."
Hatch explains that "pornography and obscenity consumption harms individuals, families, communities." Unfortunately, Hatch said, the DOJ has a "terrible record enforcing adult obscenity law" -- such enforcement stopped during the Clinton administration and there is not much more to show for it during the Bush administration.
The problem, Hatch explained, is that the DOJ is only prosecuting "extreme" obscenity -- not what he calls "mainstream obscenity." Since most consumers only access "mainstream obscenity," not "extreme obscenity," this strategy is misguided -- it prosecutes "too narrow a range of obscenity." Also, warned Hatch, there are far too few FBI resources being devoted to "mainstream obscenity prosecutions."
Mukasey promised to review the policy of only prosecuting "extreme" rather than "mainstream" pornography, and vowed: "I recognize that mainstream materials can have an effect of cheapening a society, objectifying women, and endangering children in a way that we can't tolerate."
As I wrote the last time Hatch urged that law enforcement resources be devoted to prosecuting adult, "mainstream" pornography:
Orrin Hatch spent the first two minutes of his time "questioning" Gonzales by lauding Gonzales' extreme integrity and diligence during this Grave and Epic War on Terrorism that America faces, explaining that everything they've done is critical to protecting us and describing the time in which Gonzales is Attorney General as one of the most difficult and important in history -- Hatch emphasized that he means not only U.S. history, but in the history of the whole, wide world. That is really what he said. He did not ask one question about anything the DOJ is doing with regard to this Most Important Matter Ever.
Hatch then spent the rest of his time (all 6 minutes) demanding that Gonzales and the Justice Department devote much more of its resources and attention -- including FBI agents, other law-enforcement resources and a new task force -- to enforcing anti-obscenity laws against people in the U.S. who produce pornography, particularly those who sell it over the Internet, and urged that whole new laws be created to criminalize Internet pornography. Hatch praised the anti-pornography law passed last year called "The Adam Walsh Act" (guided through Congress by its main sponsor, Republican Congressman Mark Foley), but then insisted that whole new laws and far more substantial efforts were required to battle the perverse and destructive wickendness of sex films. Gonzales assured him they were devoting many investigative resources to enforcing obscenity laws.
Or, to put it another way, the Terrorists pose such a grave danger to our Republic that it is the most threatening and important time Ever, justifying whole new expansions of government power and total government secrecy in order to protect us and to win this War because the Terrorists want to kill us all, and our law enforcement resources should therefore be poured into imprisoning people who make adult films and putting an end to pornography. That's what Orrin Hatch said today.
That, more or less, is what Hatch did again today.
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Sen. Feinstein: As critical as I've been of Dianne Feinstein, her questioning was far and away the most important and enlightening thus far, and Mukasey's answers were deeply disturbing, though I am quite certain they will not impede her vote for confirmation.
She focused on Mukasey's ruling in Padilla (overturned by the Second Circuit) that the President has the power to detain U.S. citizens on U.S. soil without charging them with a crime. Feinstein asked whether Mukasey would advise the President that -- as he ruled -- he does have the power to detain American citizens on U.S. soil with no charges.
Mukasey tried initially to evade the question by claiming (inaccurately) that the Supreme Court in Hamdi ruled that the President does have that power (the Hamdi decision actually held the opposite: that while the President could detain U.S. citizens as "enemy combatants," some basic due process must be provided in order for the accused to prove his innocence. Upon the ruling, the Bush administration released Hamdi rather than prove his guilt).
But worse, as Feinstein pointed out, Hamdi was detained on a battlefield in Afghanistan, not on U.S. soil. So she asked again: would you advise the President that he has the power to detain American citizens on U.S. soil with no charges? This time, forced to answer, Mukasey gave a disturbing, evasive non-answer: he said, in essence, that he is not sure that there is legal authority now to do so given the Second Circuit's reversal of his decision.
To Mukaskey, then, it is an open question whether the President can imprison U.S. citizens, arrested on U.S. soil, with no charges of any kind. Shouldn't that be a rather significant hurdle to his becoming Attorney General, to put it mildly?
Feinstein also asked quite vigilantly about Mukasey's statement in the Padilla case that "courts may not review the level of force selected by the President." She asked whether he believes that Congress has the power to limit the President's decisions regarding wars and the use of military force.
Mukasey, in essence, failed and refused to answer again. First, when she asked how long this Presidential authority lasts to use force, Mukasey replied: "it lasts as long as it has to last until other political bodies can take the matter up and deal with it" -- implying, though not necessarily, that the only thing Congress can do is authorize, but not prohibit, the President's use of military force.
When Feinstein pressed further, Mukasey said he hopes the conflict between Congress' powers and the President's powers on the issue of war would never have to be resolved, because he hopes there will never be a conflict.
But Feinstein -- clearly referring to Iran -- said he had to know the answer, because soon "we could be faced with an exercise of executive power that we would want to bind." Thus, she asked again: "would Congress have authority under Article I to do so?"
Mukasey replied: it "would depend on how it was done and what was done." He said that he doesn't really know the answer, because his "learning curve [about these issues] has been pretty steep."
When Feinstein pressed again and asked whether the President would be required to at least advise Congress of his intentions and actions with regard to war, Mukasey didn't answer that either, saying instead: "The President does do that. It would depend on the level of detail." It "would be unwise" for the President to use force without telling Congress.
These are rather critical issues -- and ones easily anticipated -- that he has showed up unprepared to answer. And some of them -- such as the power of the U.S. President to detain U.S. citizens without charges and the ability of Congress to limit the president's war powers -- ought not need a "learning curve" to answer.
(Charles Grassley is up now, so it's a good time to take a break. Feingold is next, the last one before lunch, and he is always worth waiting for).
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Sen. Feingold: Feingold beings by disclosing that Mukasey told him as part of their private meeting that he is "agnostic" on the question of whether the President can violate FISA. Since that took place several weeks ago, Feingold asked again: "Does the President have constitutional authority to violate the criminal law when acting as Commander-in-Chief?"
In fairness, that was a different question than the one Feingold said Mukasey answered before (which was FISA-specific), and Mukasey responded: The reasons for his "agnosticism" was that he is not familiar with the NSA program. "For me to make a categorical statement with regard to that program would be irresponsible."
Feingold persisted: "Without knowing all the details of the NSA program -- do you agree that under Justice Jackson's three-part test [in Youngstown] -- the President'a authority to authorize warrantless eavesdropping would be at its lowest ebb in light of the criminal prohibition in FISA?"
Mukasey: "Under that analysis, the Preisdent's authority -- to the extent it is not a war-based authority -- is at its lowest ebb." When Feingold said that this would be the case even if the powers were "war-based" (whatever that means), Mukasey agreed that the "lowest ebb" test would apply. But he also cited Griffin Bell's statement again and clearly stated he thinks there is some "gap" between where FISA ends and the President's eavesdropping authority begins.
Mukasey volunteered that the Fourth Amendment bars only "unreasonable searches," and while it does go on to describe warrants, "there is very scant case law on whether intelligence gathering (as distinct from gathering of evidence for criminal cases) actually requires warrants."
Feingold told him: "In light of the clear statutory language of FISA, I find your equivocating somewhat troubling." FISA says that it is the "exclusive means" for conducting surveillance, clearly meaning that Congress did not leave any room for President to eavesdrop in violation of it. Feingold: "This is a very important principle. The Attorney General should be comfortable with this."
Mukasey, in response, again relied on his standard excuse that will undoubtedly be repeated 100 times before the day ends: "I don't know what the program involves. I have to limit my response."
Feingold, a little lamely, ended that part of the questioning by saying that he'll take "agnostic" as better than some extreme theory of presidential power.
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Mukasey will clearly support the Ashcroft/Comey/Goldsmith view that the President possesses Article II power to eavesdrop for foreign intelligence purposes, even on U.S. soil, and that FISA cannot restrict that power. Mercifully, the morning session -- and my live-blogging -- has concluded.
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TPM has the video of the Feinstein-Mukasey exchange on the President's authority to detain U.S. citizens indefinitely with no charges.