Mukasey Tongue-Tied on Administration Law Breaking

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Michael Mukasey is not a man to live in the past. It’s a much more difficult place.

Sen. Arlen Specter (R-PA) started his questions by asking about the President’s Article II powers under the Constitution. Do you think that the President can break any law he pleases because he’s the President — including, say, statutes banning torture?

“I can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids,” Mukasey shot back.

“Well, he did just that when he violated the Foreign Intelligence Surveillance Act” Specter responded. “Didn’t he?”

Well, “both of those issues have been brought within statutes,” Mukasey responded, apparently hoping that he wouldn’t have to discuss the stickier past.

“That’s not the point,” Specter pressed. “The point is that he acted in violation of statutes, didn’t he?”

“I don’t know,” Mukasey conceded. Awkward.

“There’s no dispute about that,” isn’t there? The law says you have to go to court to get a warrant for wiretapping and the administration didn’t do that.

Mukasey then wound into a description of the alleged problems with FISA regarding foreign to foreign communications.

“But I’m talking about wiretapping U.S. citizens in the United States” Specter protested, before giving up, saying “Well, not getting very far there, let me move on….”

Update: Here’s the transcript:

SPECTER: Attorney General Mukasey, we have seen the expansion of assertions of presidential authority under Article II, illustrated, as I said earlier, by his violating the Foreign Intelligence Surveillance Act, saying that he had Article II powers as commander in chief.

We have seen the president disregard the National Security Act of 1947, which mandates telling the Intelligence Committees in both houses when he undertakes a program like the terrorist surveillance program.

And the question comes down to whether the president may assert Article II power to violate the U.S. statute prohibiting torture and to act in variance with the Geneva Convention to protect America.

I’m going to read you a judgment by former Deputy Attorney General Philip Heymann, now a Harvard professor. And in a book he wrote to this effect, quote: “For the extremely rare case of an immediate threat to U.S. lives, unavoidable in any other way, we would allow the president to personally authorize an exception to the U.S. obligation under the Convention Against Torture and the U.S. Constitution not to engage in cruel, inhuman or degrading treatment short of torture, so long as the decision by the president is based on written findings documenting his reasons and is promptly submitted to the appropriate congressional committees,” close quote.

My question to you is that under the standard which former Deputy Attorney General Heymann articulates, is there a legitimate argument that the president has Article II powers to undertake such conduct?

MUKASEY: There are a number of concepts in your question, including whether he has authority to undertake torture.

Torture, as you know, is now unlawful under American law. I can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids.

SPECTER: Well, he did just that in violating the Foreign Intelligence Surveillance Act. He did just that in disregarding the express mandate of the National Security Act to notify the Intelligence Committees. Didn’t he?

MUKASEY: I think we are now in a situation where both of those issues have been brought within statutes, and that’s the procedure going forward.

SPECTER: That’s not the point. The point is that he acted in violation of statutes, didn’t he?

MUKASEY: I don’t know whether he acted in violation of statutes.

SPECTER: Well, didn’t he act in violation of the Foreign Intelligence Surveillance Act? Expressly mandates you have to go to a court to get an order for wiretapping. There’s really no dispute about that, is there?

MUKASEY: It required an order with regard to wire communications when that was a surrogate for foreign communication, for domestic communications, when foreign communications became something that traveled by wire.

SPECTER: I’m not talking about foreign communications. I’m talking about wiretapping U.S. citizens in the United States. Terrorist surveillance program undertook to do that.

SPECTER: Well, not getting very far there. Let me move on to the…

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