Senate should get more answers before confirming attorney general

October 29, 2007|By Carl Tobias

The Senate Judiciary Committee recently grilled retired U.S. District Judge Michael B. Mukasey at his attorney general confirmation hearing. Senators will confirm him because many had called for Alberto R. Gonzales' resignation and replacement with someone of Mr. Mukasey's stature.

Although he forthrightly answered numerous questions, Mr. Mukasey did not respond to some and was unclear in his answers to others. Accordingly, before confirming him to one of the most powerful and important positions in government, senators ought to submit follow-up questions. The nominee's direct responses to the following concerns would facilitate his being approved:

Depoliticizing the Justice Department. The Bush administration's firings of U.S. attorneys for apparently political reasons have been controversial. The dispute has led top department officers, including the three highest-level officials and a number of assistant attorneys general, to quit. The department and many of the U.S. attorney offices have lacked sufficient leadership, and this has undercut professionalism and morale.

If you receive Senate confirmation, how do you plan to revitalize and depoliticize the department and fill the vacancies? How would you select a deputy attorney general, the individual responsible for daily department operations; the associate attorney general, the No. 3 official; and the assistant attorney general for the Office of Legal Counsel, which issues opinions for federal agencies on whether their initiatives are legal? Should all U.S. attorney vacancies be filled, although they would only serve a year and their confirmations would be resource-intensive?

Domestic surveillance. In late 2005, the Bush administration revealed that the National Security Agency had been undertaking domestic surveillance without the court-issued warrants required by the 1978 Foreign Intelligence Surveillance Act. Lawmakers and the public have expressed great concern that this violates privacy. Recent legislation authorized surveillance, with some restrictions, until early 2008. If you are confirmed, how would you advise President Bush and Congress on domestic surveillance? Should FISA be modernized for the post-9/11 era, and if so, how?

Interrogation techniques. Since 9/11, the administration has advocated and seemingly employed harsh interrogation measures for terrorism suspects. Observers contend that a number of these techniques resemble torture and are questionable, ineffective and counterproductive. If you are confirmed, what advice would you offer on this question? Do American law and U.S. treaty obligations permit techniques such as simulated drownings?

Executive power. Numerous federal lawmakers and judges have expressed concerns that the administration has concentrated too much authority in the executive branch. Examples include the unilateral establishment of the domestic surveillance initiative and military commissions to try suspected terrorists. When senators asked whether the president must obey federal statutes, you suggested that he might not in areas concerning the power to defend the nation.

Does this authority trump the president's duty to obey legislation passed by Congress under its Article I power to "provide for the common defense"? And does your view comport with the Supreme Court's Youngstown decision, which held unconstitutional President Harry Truman's seizure of U.S. steel mills to defend the nation in the Korean conflict, as he disobeyed federal laws?

Carl Tobias is the Williams professor at the University of Richmond School of Law. His e-mail is

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