Justice Under Mukasey: Gonzales, Take Two

An early indication of such a pro-executive temperament came in February, in perhaps the sharpest clash yet between Congress and Bush over the limits of executive power.

Since last summer, Bush has made a sweeping claim of executive privilege in rebuffing House subpoenas demanding that White House Chief of Staff Joshua B. Bolten turn over documents and former presidential counsel Harriet Miers testify about the U.S. attorney firings. At his confirmation hearing, Mukasey signaled that he would be reluctant to refer a contempt-of-Congress citation to a grand jury, as called for under federal law — and, after the House approved such citations in February, Mukasey did as he’d hinted he would and announced that he would not act on them. He argued that Congress could not compel the executive branch to move against Bolten and Miers, because in his view there was no crime in honoring Bush’s executive privilege claim. When House Democrats filed a civil suit last month seeking the aid of a federal judge to enforce the subpoenas, Justice responded by saying Congress lacked legal standing to pursue the matter.

Executive Power Plays

Mukasey has likewise seconded administration policy in its widespread application of the state secrets privilege. The Bush White House has invoked the privilege in a torrent of lawsuits challenging its surveillance and detention policies, saying it should not have to turn over evidence that, if it became public, could harm national security. Judges have generally sided with the administration when it has invoked this privilege.

Democrats have proposed legislation that would narrow the privilege and instruct judges how to apply it. But Mukasey has argued that the privilege, which was enshrined by the Supreme Court during the Cold War, is rooted in the Constitution and that Congress may be illegitimately seeking to curtail it.

“Congress, of course, cannot alter the president’s constitutional authorities and responsibilities by statute,” he wrote to Leahy in March, saying that the Senate version of the state secrets bill would “inappropriately shift the responsibility for making national security judgments away from the executive and to the courts.”

It was a surprising assertion by Mukasey, given that he handled several high-profile national security cases as a federal judge, including the original government complaint against the terrorist Jose Padilla.

Louis Fisher, a Library of Congress scholar, fired back with a harsh critique of Mukasey’s position in a letter last month to Massachusetts Democrat Edward M. Kennedy , the sponsor of the Senate bill. “According to Attorney General Mukasey, presidents are entitled to unilaterally define the scope of their powers under Article II, and no other branch has any authority to impose limitations,” Fisher wrote. “The Constitution has been interpreted in that manner at times by some president[s], but never successfully. Such a reading would eliminate the checks and balances that are fundamental to the U.S. Constitution.”

Mukasey has also toed the administration line in the ongoing battle over whether telecommunications companies should be granted retroactive immunity from lawsuits arising from the help they gave the government in conducting warrantless wiretaps. “I haven’t seen anything different” from Mukasey than from his predecessor, said New York Democratic Rep. Jerrold Nadler , who has helped lead House efforts to keep such immunity out of legislation to rewrite the Foreign Intelligence Surveillance Act. “He’s defended every excess of executive power.”

Mukasey answered questions at his confirmation hearing related to torture and detainee abuse by pledging to study classified interrogation techniques once he took office. But he has since declined to undertake a detailed review. He told Congress in January that he wouldn’t weigh in on the legality of one of the most controversial coercive interrogation techniques — the simulated-drowning technique known as waterboarding — because it was no longer an authorized technique and thus didn’t fall under the terms of his confirmation pledge. And in January, Mukasey argued before Senate Judiciary that a 2005 law on the treatment of detainees “engages the standard under the Constitution, which is a shocks-the-conscience standard, which is essentially a balancing test of the value of doing something as against the cost of doing it.”

That prompted Delaware Democrat Joseph R. Biden Jr. , a 35-year veteran of the Senate, to tell Mukasey, “You’re the first person I’ve ever heard say what you just said.”

Body of Precedent

These decisions and signals might have been less surprising to members of Congress who were familiar with Mukasey’s rulings from the federal bench. In 2002, for example, he said Bush had unilateral authority to hold an American citizen, Padilla, on U. S. soil as an enemy combatant. Mukasey also ruled that Padilla, who was accused of trying to make a “dirty bomb,” was entitled to an attorney. But his broader holding in favor of the president’s muscular detention policy was reversed on appeal the next year. Eventually, the administration rendered the dispute moot by bringing criminal charges against Padilla in a federal court, heading off a potential Supreme Court ruling against its detention policy.

Justice Under Mukasey: Gonzales, Take Two

In 2004, Mukasey dismissed a class action lawsuit against an Italian insurer, Assicurazoni Generali, by survivors of Holocaust victims who wanted payments from the victims’ life insurance policies. He cited a 2003 Supreme Court case, American Insurance Association v. Garamendi, that struck down a California insurance law because of a U.S. agreement with Germany. Though the circumstances were different, Mukaseysaid, the Garamendi decision required him to show deference to an administration policy of discouraging such lawsuits.