Balkinization: Written Questions for Judge Mukasey

Written Questions for Judge Mukasey

Marty Lederman

Senator Leahy has collected in one place most or all of the written questions that Senate Judiciary members have proffered to Judge Mukasey. The Judge's answers to these questions should be interesting.

His first submission, however, is not really responsive. Senator Leahy asked the Judge about whether and when the President has authority as Commander in Chief to disregard statutory commands, such as those found in the torture statute and in FISA. Judge Mukasey's response hits a lot of the right notes, stressing that before the President disregards a statute, he should work closely and cooperatively with Congress to try to amend it. But he never quite gets around to answering Senator Leahy's question about whether and when the President can disregard the statute in the event it is not amended, as President Bush has done with FISA and other statutes.

And there's at least one sentence in Judge Mukasey's letter that might be misconstrued. He writes: "[F]oreign intelligence gathering is a field in which the executive branch is regulated but not preempted by Congress." Insofar as this is intended to suggest that the President is not "preempted" from engaging in "electronic surveillance" (as defined by the statute) outside the terms of FISA, it's simply mistaken -- FISA and other federal laws specify that they are the "exclusive means" of lawfully engaging in such electronic surveillance. Therefore, I assume that Judge Mukasey is here simply intending to point out that FISA doesn't cover all "foreign intelligence gathering" -- i.e., that "electronic surveillance" does not exhaust the field of all foreign intelligence, and that therefore the President retains the constitutional authority to engage in some forms of foreign intelligence gathering that are simply outside FISA's ambit. Attorneys General Levi and Bell stressed the same point during the 1970s hearings on FISA -- but if that is what Judge Mukasey means, it does not speak at all to the question of whether the President retains any constitutional authority to engage in "electronic surveillance" contrary to the standards and procedures established by federal law.

Posted 6:50 AM by Marty Lederman [link]

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# posted by

jme : 7:41 AM

My suspicions are that Judge Mukasey's sentence that you quote is deliberate and intentional in its support for the Administration's claim to have Article II primacy over FISA, instead of primacy over stuff "outside" of FISA.

Judge Mukasey prior rulings and public statements lend a good deal of credence to his subservience to the Unitary Executive philosophy.

I would suggest that given the past history of this Administration, it is best not to give them or Judge Mukasey the benefit of the doubt.

# posted by

Mad Dogs : 3:49 PM

Reading his letter to Leahy reinforces for me the following.

I hope Mukasey will turn out to be everything we've apparently seen so far, not a unscrupulous GOPer in the mold of Yoo, Bybee, Levin and countless others cynical shysters willing to provide legal rationale for everything Cheney or his people ever wanted, or that low rent Bush's Texas abogado who never really understood what this country or its Constitution are all about, but a responsible, reasonable, ethically solid human being.

There are plenty of indications that this is the case here, my only problem with him so far is his strong preference for secret courts as a way to deal with terrorism and a certain cavalier approach to the civil rights of his fellow citizens as evident in his conviction that government agents cannot ever do wrong. I sort of understand the latter (him being a US judge after all) but the secret courts were a bad idea in Germany, were a bad idea in Stalinist Russia and there is no reason to believe they will be any better in this country.

FISA is a relict of the Cold War, a token nod to the internal security apparatus of this country, Hoovers and such, an awkward device nobody including the said apparatus was ever any happy about.

Mukasey needs to understand that truly robust democracies can handle everything in open courts with only as minimal as possible accommodations for protecting legitimate (that is not Cheney's) government secrets. That that can be done is plain on its face for everybody to see, there were number of sensitive cases handled in the open courts recently and in no one case anything was compromised. If anything the courts tended to side with the government need for secrecy at the expense of the other parties.

Secrets courts is a bad idea regardless of circumstances.

# posted by

wg : 6:35 PM

Should we assume that Mukasey is free to say what he wants? Bush may have told him that he, Bush, will withdraw Mukasey's nomination if Mukasey says that waterboarding is torture, that the president is subject to the law, or whatever.

# posted by

Henry : 4:22 PM

Prof. Lederman:

And there's at least one sentence in Judge Mukasey's letter that might be misconstrued. He writes: "[F]oreign intelligence gathering is a field in which the executive branch is regulated but not preempted by Congress." Insofar as this is intended to suggest that the President is not "preempted" from engaging in "electronic surveillance" (as defined by the statute) outside the terms of FISA, it's simply mistaken -- FISA and other federal laws specify that they are the "exclusive means" of lawfully engaging in such electronic surveillance. Therefore, I assume that Judge Mukasey is here simply intending to point out that FISA doesn't cover all "foreign intelligence gathering" -- i.e., that "electronic surveillance" does not exhaust the field of all foreign intelligence, and that therefore the President retains the constitutional authority to engage in some forms of foreign intelligence gathering that are simply outside FISA's ambit.

I read this a bit differently. I think that Mukasey is sugesting that the gummint works best when the two (or three) branches co-operate and that the legislative branch doesn't "preempt" the executive from performing certain surveillances, but instead keeps such surveillances under "regulat[ion]".

I think he's remarking on the desirability of legislative preemption, rather than its constitutional basis.

Here's the full paragraph:

[Mukasey]: "As I tried to stress during the hearing, government works best, and with the greatest legitimacy, when the branches act cooperatively, each with respect for the other's constitutional prerogatives. I agreed more than once that consultation between the Committee and the Department often can prevent issues from evolving into controversies. FISA appears to be a model of such cooperation and mutual respect. Thus, foreign intelligence gathering is a field in which the executive branch is regulated but not preempted by Congress. This approach has served us well."

There is an undercurrent there that Mukasey may think that any pre-emption by Congress may in fact not only be inadvisable, but may even occasion legal disputes which perhaps should be resolved in favour of the preznit in Mukasey's view as infringing too much on the preznit's "constitutional prerogatives".

But it does seem to be more a "You can't fight in here; this is the War Room" type of exclamation than an out-and-out statement of position ... IOW, a glitzy non-answer.

Time to ask the question again.

Cheers,

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# posted by

Unknown : 5:33 PM