Statement of U.S. Senator Russ Feingold
In Opposition to Judge Michael Mukasey, Nominee to be the Next Attorney
General
Senate Judiciary Committee
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November 6, 2007
I voted against the nomination of Judge Mukasey to be the next attorney
general, but it was a difficult decision, as Judge Mukasey has many
fine qualities. I was particularly impressed by his determination to
depoliticize the Department of Justice. After the debacle of the last
attorney general, this is obviously a very high priority. If nothing
else, over the remaining 14 months of the Bush presidency, the department
must recover its credibility and its reputation.
Never again should it be led by someone who is willing to wield its
awesome power for political purposes or fill its most important positions
with individuals chosen for their politics, rather than their legal
skills. Judge Mukasey appears to have the intelligence, the experience
and the stature to undertake this very important task.
And there are other areas where I was very favorably impressed by Judge
Mukasey. His straightforward promise to stop the disparate treatment
of gay employees at the Department of Justice was welcome and refreshing.
He indicated his intention to be a much more hands-on manager of the
process for seeking the federal death penalty. And when I asked him
in writing if a request by a U.S. attorney to discuss a death penalty
decision with the attorney general personally was a valid reason to
fire that U.S. attorney, he answered simply, “No.” So if
Judge Mukasey is confirmed, I look forward to working with him to try
to ensure that the federal death penalty is fairly administered.
I was also impressed that on several occasions Judge Mukasey was willing
to admit in his written answers that some things he had said or written
in the past were incorrect. This administration needs more people who
admit that they were wrong when that is the case. That's the kind of
humility and honesty that is often the first step toward correcting
mistakes and reaching consensus.
In many respects, then, Mr. Chairman, Judge Mukasey is a big improvement
on the previous attorney general. At this point in our history, however,
the country needs more. Simply put, after all that has taken place over
the last seven years, we need an attorney general who will tell the
president that he cannot ignore the laws passed by Congress. And on
that fundamental qualification for this office Judge Mukasey falls short.
The president's warrantless wiretapping program instituted after 9/11
and carried out in secret until it was revealed in a New York Times
article in December 2005 presented the Department of Justice with a
historic test of its integrity and its commitment to the rule of law.
Under the previous leadership, the department failed that test. We need
an attorney general who, when faced with a similar crisis, will look
the president in the eye and tell him no.
When I first met with Judge Mukasey, I questioned him about the two
justifications for authorizing warrantless wiretaps that the department
had put forward publicly. With respect to the argument that the Authorization
for the Use of Military Force, or AUMF, somehow authorized warrantless
wiretaps, he said at the time, “I don't see that argument.”
With respect to the argument that the program was legal under the president's
Article II powers, he said that he was "agnostic."
I and a number of my colleagues returned to this question in the hearings
and in written questions for the record. Unfortunately, this time the
results were not reassuring. He responded to my question for the record
about the largely discredited AUMF justification by saying that, “I
still have not come to a conclusion. I believe there are good arguments
on both side of that issue.” Now, that's a statement that ought
to give pause to anybody in this body.
His answers to questions concerning the Article II justification indicate
that he's really no longer agnostic on this question, but instead has
somehow suddenly become a believer that executive power trumps the laws
written by Congress.
Both at the hearing and in writing, Judge Mukasey stated several times
that the president must obey all valid and constitutional statutes,
even if he is acting to defend or protect the country. He also said
that, “FISA is a constitutional law,” and that, “As
a general matter, therefore, the president is not free to disregard
or violate FISA.”
But he also stated that, “The difficult separation of power questions
would arise would have to be resolved through the three-part test articulated
in the Supreme Court Youngstown case, if a statute and FISA, in particular,
were to constrain the president's constitutional authority.” If
FISA is constitutional -- and Judge Mukasey says it is -- then why are
these separation of power questions so “difficult”? Clearly,
Judge Mukasey believes that a law can be constitutional on its face,
but can become unconstitutional if its application constrains the constitutional
authority of the president.
I'm afraid, Mr. Chairman, that there's really no difference between
this view of executive power and the theory that executive power trumps
congressional power. There's no other way to interpret Judge Mukasey's
statement to Senator Leahy: “If by illegal, you mean contrary
to a statute but within the authority of the president to defend the
country, the president is not putting somebody above the law; the president
is putting somebody within the law.”
Now, my colleagues, this view is simply contrary to Justice Jackson's
three-part test in Youngstown. Youngstown makes clear that when the
president's constitutional authority and a statute passed by Congress
come into conflict, the president's powers are reduced by whatever powers
Congress holds over the subject; not the other way around, not vice
versa. Jackson states that when the president acts against the will
of Congress, “He can rely only upon his own constitutional powers,
minus any constitutional powers of Congress over the matter. Courts
can sustain exclusive presidential control in such a case only by disabling
Congress from acting upon the subject.” Congress is thus free
to constrain the president's constitutional powers to any degree it
likes, as long as Congress is acting within its own powers in doing
so. Likewise, the president's actions may be upheld only if they are,
“within his domain and beyond control of Congress.”
The argument that constitutional statutes can become unconstitutional
ignores the second part of the inquiry; whether the limitation of the
president's authority is in an area where Congress cannot legislate.
It is clear that wire-tapping is not within the exclusive domain of
the president, as Judge Mukasey admits that FISA is a constitutional
law. Moreover, the executive authority that Judge Mukasey invoked most
often, the authority to protect and defend the country, is not exclusive
to the president; it is an authority that Congress shares, which Judge
Mukasey admitted in answers to written questions.
I discuss this issue in some detail because extreme theories of executive
power have become one of the primary and most unfortunate legacies of
the Bush administration. Congress needs to be very clear in rejecting
them and in making respect for the rule of law a nonnegotiable qualification
for the office of attorney general of the United States.
Let me just say a work about the issue of torture, which has dominated
the debate on the nomination of Judge Mukasey in the past week. Last
week the White House press secretary again implied the members of Congress
who have been briefed in the CIA's interrogation program have approved
it or consented to it. That is not the case. I have vigorously opposed
the program and continue to do so. The program is of highly questionable
legality, it is inconsistent with our values as a nation, and it does
not make our nation any safer. In fact, I believe it may have the effect
of exposing Americans, including other U.S. personnel, to greater risk.
I have detailed the reasons for my strong objections to the CIA's program
in classified correspondence sent very shortly after I was first briefed
on it. More recently I've stated my opposition publicly, although I
am prohibited by classification rules from providing further details
about my concerns in a public setting.
In any event, neither detailed legal and factual analysis nor knowledge
of the operational details of the CIA's program is necessary to reach
a judgment on whether waterboarding is torture. Waterboarding has been
used by some of the most evil regimes in history, as Senator Kennedy
so ably pointed out. It has been considered torture in this country
for over a century. If Judge Mukasey won't say the simple truth –
that this barbaric practice is torture – how can we count on him
to stand up to the White House on other issues?
America needs an attorney general who stands squarely on the side of
the rule of law. This is not an arid theoretical debate. The rule of
law is the very foundation of freedom, and a crucial bulwark against
tyranny. Congress cannot stand silent in the face of this challenge
by the executive to the crucial underpinning of our system of government.
Mr. Chairman, the nation's top law enforcement officer must be able
to stand up to a chief executive who thinks he is above the law. The
rule of law is too important to our country's history and to its future,
to compromise on that bedrock principle.
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