Mukasey Breezing by, But Terror War Could Falter

President Bush's nominee for attorney general, Judge Michael Mukasey, seems likely to breeze through the Senate's confirmation process with nary a scratch, but much of the Bush administration's legal and legislative strategy for prosecuting the war on terror could wind up badly bruised.

During Judge Mukasey's first day of confirmation hearings before the Senate Judiciary Committee, the jurist and former prosecutor forcefully repudiated a 2002 Justice Department memorandum that critics contend authorized torture.

"The Bybee memo was worse than a sin, it was a mistake," Judge Mukasey said, referring to the policy guidance issued by the then-director of the Office of Legal Counsel, Jay Bybee. He is now a judge on the 9th Circuit Court of Appeals.

Under questioning by the committee chairman, Senator Leahy of Vermont, Judge Mukasey underscored the need for America to retain the moral high ground on the issue of torture. "It's antithetical to everything this country stands for," he said. Noting that American troops freed victims of torture from Nazi concentration camps in World War II, the judge added, "We didn't do that so we could duplicate it ourselves."

Judge Mukasey said getting such legal opinions right was not strictly a moral imperative, but also a necessity for the CIA personnel and others who need legal guidance to do their jobs. "We can't expect them to put their careers and their freedoms on the line if they don't have confidence that the authorizations given to them are sound," the judge said.

The convivial tone of most of the questioning provided ample evidence of the practical appeal of Judge Mukasey's nomination. However, the risks the pick carries for the Bush administration were also on display. In addition to denouncing in blunt terms the so-called torture memo, which was later revoked, Judge Mukasey heartily endorsed the withering critique a former Justice Department official, Jack Goldsmith, has made of the administration's attempts to assert executive power without involving Congress.

Asked by Senator Schumer about Mr. Goldsmith's recently published book, "The Terror Presidency," Judge Mukasey replied, "I thought it was superb. … I couldn't put it down. In a way, I was sorry when I finished. "

The judge went on to make clear that he endorses Mr. Goldsmith's central thesis that the Bush administration's embrace of what Mr. Schumer called "unilateralism" was a mistake. "I would certainly suggest that we go to Congress whenever we can. It always strengthens the hand of the president to do that," Judge Mukasey said. He also expressed skepticism about one of the White House's claims of executive privilege in the flap over the firing of U.S. attorneys following the 2006 election.

Senator Lieberman of Connecticut, who attended Yale Law School with the nominee and helped introduce him yesterday, said the judge's independence is unusual. "It is hard to think in recent memory of a nominee for attorney general who comes to the office… with fewer political and personal contacts to the president who has nominated him than Judge Mukasey," Mr. Lieberman, an independent of Connecticut who caucuses with the Democrats, said.

Addressing criticism leveled at Attorney General Gonzales, who resigned last month, Judge Mukasey promised unequivocally to prevent partisan political concerns from influencing individual prosecution decisions or hiring. "Any attempt to interfere with a case is not going to be countenanced," he said. "Hiring is going to be based solely on competence, ability, and dedication and not based whether somebody has an 'R' or a 'D' next to his name."

One of the few moments of disagreement yesterday came when Senator Feingold, a Democrat of Wisconsin, complained that the judge would not offer a clear position on whether a president might sometimes be able to conduct surveillance outside the procedures set up by the Foreign Intelligence Surveillance Act of 1978. The issue could bear on whether warrantless wiretapping programs authorized by Mr. Bush were lawful.

"I find your equivocation here somewhat troubling," Mr. Feingold said. "Congress has spoken."

Judge Mukasey said he could not comment on the specifics because he was not privy to details of the classified surveillance efforts. However, he added at another point: "The president can't immunize illegality. I think that's a contradiction in terms."

The only substantive discussion of Judge Mukasey's rulings during his 19 years on the federal bench came from Senator Feinstein, a Democrat of California, who questioned the judge's rulings against a sex discrimination lawsuit brought by a female New York Police Department officer fired after accusing a male officer of rape. The 2nd Circuit Court of Appeals reversed the judge's decisions twice and said he "usurped" the role of the jury.

Judge Mukasey said he ruled strictly on the legalities and "not whether the police department acted sensibly, or humanely, or certainly as I would have acted." He said his attitude toward women was demonstrated by his professional relationships and by his campaign to open the University Club to women.

While nominees are normally presented by the two senators from their home state, Senator Clinton was not on hand to introduce the Bronx-born jurist yesterday. A spokesman for Mrs. Clinton cited a "long-standing scheduling conflict" presented by another committee hearing she was chairing.