Five Key Questions for President Bush's New Attorney General Nominee, Michael Mukasey

By CARL TOBIAS

Wednesday, Oct. 17, 2007

Last month, President Bush nominated Michael Mukasey, a retired U.S. District Court Judge for the Southern District of New York, to become the new U.S. Attorney General. Mukasey's confirmation hearings are scheduled to begin today, October 17. Here are five key sets of questions I believe lawmakers should pose to Mukasey:

Questions Regarding National Security Courts

This past summer, you wrote an opinion piece that argued for the creation of national security courts to try suspected terrorists. Why do you believe that the federal courts, which have expertly and fairly resolved myriad controversial and complex issues for more than two centuries, are inadequate to the task of deciding modern terrorism cases?

Moreover, given your position that the federal courts are inadequate, how do you explain the significant number of post- 9/11 trials that federal courts (including the Eastern District of Virginia and the Southern District of New York, on which you served) have successfully concluded?

More specifically, how do you explain Judge Leonie Brinkema's expert and satisfactory resolution of the trial of the "20th hijacker," Zacarias Moussaoui? How do you explain Judge Marcia Cooke's careful trial of Jose Padilla?

If the Senate confirms you as Attorney General, would you support creation of national security courts? If so, what specific features would the proposed courts possess?

Questions Regarding Department of Justice Politicization

The Bush Administration's dismissal of at least nine U.S. Attorneys for apparently political reasons over the last 15 months has been extremely controversial. Investigations into those firings have led to a constitutional confrontation between the White House and Congress over testimony and documents, with the White House asserting executive privilege, and Congress threatening to hold former and present officials in contempt.

The controversy has led nearly a dozen upper echelon Justice Department officers to resign. The three highest positions at Justice, as well as several Assistant Attorneys General positions, remain vacant, while almost a third of the 93 U.S. Attorney positions lack permanent occupants. The Department and the U.S. Attorney offices throughout the nation have lacked organization, management and leadership for too long, while these phenomena and the controversy have undermined professionalism and morale. Indeed, Senator Arlen Specter (R- PA), the ranking minority member of the Judiciary Committee, and others have characterized the Department as disorganized, in disarray, and dysfunctional.

If the Senate confirms you as Attorney General, how would you restore professionalism and morale to the Department and what measures would you implement to depoliticize it? How would you expeditiously fill the upper-level vacancies in the Department and in the many U.S. Attorney positions which lack permanent appointees? How would you advise the president to rectify or ameliorate the constitutional standoff with Congress over documents and testimony?

Questions Relating to Domestic Surveillance

In December 2005, President George W. Bush admitted that the NSA had been conducting domestic surveillance without the court-issued warrants that were required by the Foreign Intelligence Surveillance Act (FISA). Members of Congress and the public have expressed deep concern about privacy invasions, while Congress has attempted to investigate domestic surveillance -- an initiative which the White House has opposed on national security grounds.

Congress recently passed stop-gap legislation that authorizes surveillance, subject to certain restrictions, for six months. If the Senate confirms you as Attorney General, how would you advise the president and Congress on how best to strike the delicate balance between national security and civil liberties in the domestic surveillance context?

More specifically, do you believe that FISA should be updated in response to realities in the post-9/11 environment? If so, what specific changes would you favor?

Questions Relating to Interrogation Techniques

Since the 9/11 terrorism attacks, the Bush Administration has advocated and apparently employed harsh interrogation techniques for terrorism suspects. Some of the methods used are considered by many observers to be tantamount to torture.

In 2003, the Justice Department issued the so-called "torture memos," which apparently authorized use of techniques that resemble torture, although the Department subsequently withdrew those memos. The New York Times recently reported that the Administration later issued new documents that may have served to re-authorize torture.

The Administration has refused to make those documents public, while President Bush has reiterated his contention that the U.S. does not torture suspects. Many knowledgeable observers have asserted that the techniques are morally dubious, ineffective and counter-productive, as they can encourage others to employ the measures against the U.S.

If the Senate confirms you as Attorney General, what advice would you give the Administration on interrogation techniques? More specifically: Would you advocate making public the recently-issued documents? What techniques do you believe would best serve America's interests? And, how would you implement your suggestions?

Questions Regarding Theories of Executive Power

Numerous observers, especially members of the legislative and judicial branches, have evinced concern that the Bush Administration has concentrated excessive power in the Executive Branch, to the nearly complete exclusion of its two otherco-equal branches. This phenomenon has numerous manifestations, including the Administration's unilateral creation of military tribunals for trying suspected terrorists and its creation of the warrantless domestic surveillance program.

Do you perceive the concentration of power in the Executive to create problems for constitutional governance? If you do not, why not? If you view this as a difficulty, how would you remedy or ameliorate it?


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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