Mukasey heads to likely ap­proval in Se­nate; panel OKs nom­i­na­tion 11-8

The Washington Times Weekly - - National - By Jerry Seper

Two Democrats joined with all nine Repub­li­cans on the Se­nate Ju­di­ciary Com­mit­tee on Nov. 6 to ap­prove 11-8 the nom­i­na­tion of re­tired fed­eral judge Michael B. Mukasey as at­tor­ney gen­eral, set­ting the stage for his prob­a­ble con­fir­ma­tion this week by the full Se­nate.

Demo­cratic Sens. Charles E. Schumer of New York and Dianne Fe­in­stein of Cal­i­for­nia broke with their party to sup­port the nom­i­na­tion, say­ing they were con­fi­dent that as at­tor­ney gen­eral, Mr. Mukasey would en­force any law en­acted by Congress end­ing “wa­ter­board­ing,” an in­ter­ro­ga­tion tech­nique that sim­u­lates drown­ing.

“The judge made clear to me that were Congress to pass a law ban­ning cer­tain in­ter­ro­ga­tion tech­niques, we would clearly be act­ing within our con­sti­tu­tional author­ity,” Mr. Schumer said. “And he flatly told me the pres­i­dent would have ab­so­lutely no le­gal author­ity to ig­nore such a law.

“He also pledged to en­force such a law and re­peated his will­ing­ness to leave of­fice rather than par­tic­i­pate in a vi­o­la­tion of law,” he said.

But com­mit­tee Chair­man Sen. Pa­trick J. Leahy de­scribed Mr. Mukasey’s prom­ise as disin­gen­u­ous, say­ing that while “some have sought to find com­fort” in his per­sonal as­sur­ance he would en­force a new law against wa­ter­board­ing if Congress were to pass one, “un­said, of course, is the fact that any such pro­hi­bi­tion would have to be en­acted over the veto of this pres­i­dent.”

The Ver­mont Demo­crat said that al­though he wished he could sup­port the nom­i­na­tion, he was not sure Mr. Mukasey would stand for lim­i­ta­tions on ex­ec­u­tive power. He ac­cused Pres­i­dent Bush of vi­o­lat­ing U.S. obli­ga­tions un­der the Con­ven­tion Against Tor­ture and the Geneva Con­ven­tions and of dis­re­gard­ing U.S. statutes for­bid­ding tor­ture.

“What we need most right now is an at­tor­ney gen­eral who be­lieves and un­der­stands that there must be lim­i­ta­tions on ex­ec­u­tive power,” he said. “Amer­ica needs to be cer­tain of the bedrock prin­ci­ples in our laws and our val­ues that no pres­i­dent and no Amer­i­can can be au­tho­rized to vi­o­late. Ac­cord­ingly, I vote no on the pres­i­dent’s nom­i­na­tion.”

Join­ing him were Demo­cratic Sens. Ed­ward M. Kennedy of Mas­sachusetts, Joseph R. Bi­den Jr. of Delaware, Herb Kohl and Russ Fein­gold, both of Wis­con­sin, Richard J. Durbin of Illi­nois, Ben­jamin L. Cardin of Mary­land and Shel­don White­head of Rhode Is­land.

They balked at the nom­i­na­tion when, dur­ing the sec­ond day of his con­fir­ma­tion hear­ings, Mr. Mukasey re­fused to say whether wa­ter­board­ing was con­sti­tu­tion­ally il­le­gal or an ex­am­ple of pro­hib­ited tor­ture.

Mr. Kennedy said that af­ter “six long years of reck­less dis­re­gard for the rule of law by this ad­min­is­tra­tion, we can­not af­ford to take our chances on the judg­ment of an at­tor­ney gen­eral who ei­ther does not know tor­ture when he sees it, or is will­ing to look the other way to suit the pres­i­dent.”

The com­mit­tee’s rank­ing Repub­li­can, Sen. Arlen Specter of Penn­syl­va­nia, said that al­though some of Mr. Mukasey’s an­swers dur­ing the con­fir­ma­tion hear­ings were “flimsy,” the Jus­tice De­part­ment is “dys­func­tional” and needed new lead­er­ship.

Mr. Specter said he talked with Mr. Mukasey on Nov. 5 and was as­sured he would sup­port an ef­fort by Congress to ban wa­ter­board­ing and would quit if the pres­i­dent re­fused to fol­low the law.

Join­ing Mr. Specter in vot­ing for the nom­i­na­tion were Repub­li­cans Sens. Or­rin G. Hatch of Utah, Charles E. Grass­ley of Iowa, Jon Kyl of Ari­zona, Jeff Ses­sions of Alabama, Lind­sey Gra­ham of South Carolina, John Cornyn of Texas, Sam Brown­back of Kansas and Tom Coburn of Oklahoma.

Mr. Mukasey, 66, is a re­tired fed­eral judge, hav­ing served for 18 years in U.S. Dis­trict Court in New York. He was nom­i­nated by Mr. Bush to suc­ceed Al­berto R. Gon­za­les, who re­signed af­ter a nine-month in­ves­ti­ga­tion by the Se­nate and the House into ac­cu­sa­tions he had politi­cized the Jus­tice De­part­ment.

Mr. Mukasey told the Ju­di­ciary Com­mit­tee that al­though wa­ter­board­ing was “per­son­ally re­pug­nant” to him, he could not ren­der a le­gal de­ci­sion on its le­gal­ity or con­sti­tu­tion­al­ity with­out fur­ther study. The Bush ad­min­is­tra­tion has re­fused to say whether it ever used wa­ter­board­ing in ques­tion­ing sus­pected ter­ror­ists.

Astrid Riecken / The Wash­ing­ton Times

Sen. Charles E. Schumer (left) con­ferred with fel­low Demo­crat Sen. Richard J. Durbin af­ter vot­ing to con­firm Michael B. Mukasey’s ap­point­ment as at­tor­ney gen­eral.

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