The Mukasey Hearing

Maybe senators will have better luck getting answers than they did from his predecessor.

THE CROSS-EXAMINATION got off to a sharp, quick start: "Do you approve of torture?" "What kind of a standard is appropriate for the detention of aliens?" "To what extent has . . . the Patriot Act been of real importance in our fight against terrorism?"

Skeptical senators, already feeling burned by a hyper-secretive administration and just months after discovery of the Justice Department's "torture memo," appropriately grilled attorney general nominee Alberto R. Gonzales during his January 2005 confirmation hearing. Then Mr. Gonzales started talking. His answer to a question about the mistreatment of detainees at the Abu Ghraib prison? "As a human being I am sickened and outraged by those photos, but as someone who may be head of the department, I obviously don't want to provide any kind of legal opinion as to whether or not that conduct might be criminal," Mr. Gonzales testified. He added moments later, if "that conduct falls within the jurisdiction of the Department of Justice, I will pursue it aggressively. And you have my word on that."

The Senate Judiciary Committee should insist on more from Michael B. Mukasey, Mr. Gonzales's would-be successor, whose confirmation hearing is scheduled to begin today. Mr. Mukasey is known as a straight shooter. And as a 19-year veteran and former chief judge of the U.S. District Court for the Southern District of New York, he also appears more qualified and knowledgeable than Mr. Gonzales about a host of federal law enforcement and anti-terrorism matters. But senators shouldn't hesitate to press Mr. Mukasey about his legal opinions and policy interpretations.

Mr. Mukasey presided over the initial federal court proceedings involving alleged dirty bomber Jose Padilla. He allowed the administration to hold Mr. Padilla, a U.S. citizen, as a material witness while insisting, over administration objections, that Mr. Padilla be allowed to consult with a lawyer. How did then-Judge Mukasey strike the legal balance between the government's desire to hold Mr. Padilla and Mr. Padilla's right to counsel? Would he strike the balance in the same way as attorney general or would that balance shift because of his new role?

Does Mr. Mukasey believe that Rasul v. Bush, in which the Supreme Court found that detainees held at Guantanamo Bay Naval Base had the right to challenge their detentions, was decided correctly? Would Mr. Mukasey support legislation, pending in Congress, to restore the habeas rights of those detainees? If not, why not?

As attorney general, Mr. Mukasey would be responsible for authorizing surveillance of U.S. citizens who were overseas and believed to be involved in foreign espionage or terrorism. What legal standards and laws would Mr. Mukasey rely on to determine whether such a surveillance request was appropriate?

Would he strictly apply U.S. laws and Supreme Court rulings to determine whether CIA interrogation techniques were appropriate? Would he share that guidance with Congress? Does he believe such methods as "waterboarding" and sleep deprivation are lawful? Should they be?

Mr. Mukasey should also be actively questioned on how he intends to rehabilitate the reputation of a department that in the eyes of many has been inappropriately politicized. Starting with the once-revered Office of Legal Counsel, Mr. Mukasey needs to answer in specifics about how he would restore a culture of intellectual rigor and honesty.