The Gap in Mukasey's Testimony

When is the president authorized to break the law?

by Jacob Sullum - October 24, 2007

During his recent confirmation hearings, Michael Mukasey, the former federal judge nominated to be the next attorney general, conceded that "the president doesn't stand above the law." Yet Mukasey, who is expected to be easily confirmed, also suggested that the president is entitled to ignore certain laws.

Since the law "starts with the Constitution," he said, the president need not obey a statute that interferes with his inherent constitutional authority "to defend the country." Now that the War on Terror has replaced the Cold War as a reliable rationale for extending executive power, the breadth of this authority to defend the country will be a central issue in national politics long after Mukasey completes his service as attorney general.

Is protecting national security "a loophole big enough to drive a truck through," as Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) worried? Or is it, as Mukasey said it should be, a power the president will strive to exercise with the consent of Congress, acting without congressional support only in emergencies?

The Bush administration's track record on the surveillance, detention, and interrogation of suspected terrorists suggests Leahy's fears are justified. Even when there was plenty of time to seek congressional approval and every reason to think it would be forthcoming, this administration has chosen arrogant unilateralism over the cooperation Mukasey recommends so "we don't have to get into butting heads over who can and who can't."

Although the president is commander in chief of the armed forces, Congress has several explicitly enumerated powers related to national defense. In addition to the power of the purse, these include the power "to declare war," to "make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," and to suspend the habeas corpus privilege "in cases of rebellion or invasion."

If Congress passed a law that, say, purported to put the speaker of the House in charge of the armed forces, it would be clearly unconstitutional. Regulating the treatment of detainees, by contrast, is squarely within congressional authority.

In a sense, then, it's not surprising that Mukasey conceded the constitutionality of the Military Commissions Act, which established guidelines for detainee trials, and the Detainee Treatment Act, which bans "cruel, inhumane and degrading treatment." Still, it's reassuring, since Mukasey was nominated by a president who initially tried to go his own way in these areas and who issued a signing statement that indicated he reserved the right to ignore the latter law when it was inconvenient.

That was how Bush treated the Foreign Intelligence Surveillance Act (FISA). Until Congress amended it last August, FISA required the government to obtain a warrant to monitor communications involving people in the United States. Yet for years Bush secretly authorized the National Security Agency to conduct such surveillance without court approval.

When asked about this program, Mukasey referred repeatedly to the "gap between where FISA left off and where the Constitution permitted the president to act." He cited Carter administration Attorney General Griffin Bell's statement that FISA "does not take away the power of the president under the Constitution."

Did Mukasey mean that the Constitution authorized the president to ignore FISA's warrant requirements, as his predecessor, Alberto Gonzales, argued? No matter how many times he was asked, Mukasey wouldn't say, instead retreating to the lame argument that Congress, without realizing it, amended FISA by authorizing the use of military force against the perpetrators of the September 11 attacks.

Even as the administration continues to insist that the NSA's warrantless surveillance was legal, it is pressing Congress to give the telecommunications companies that cooperated with the program retroactive legal immunity. Immunity for what? For assisting the government with its perfectly lawful surveillance?

Clearly, Bush wants to give these companies a free pass for breaking the law in the name of national security. They shouldn't get one, and neither should he.