Questions for Mukasey

Marty Lederman

In today's New York Times, our own Jack Balkin, along with Jack Goldsmith, Jenny Martinez and Charles Fried, have some questions that the Senate should ask Judge Mukasey at his confirmation hearing this week. The Times also solicited me to provide questions, but space constraints, alas, relegated me to the cutting room floor -- an understandable decision, as you'll see, because my questions not surprisingly overlapped considerably with Jack's, Jack's and Jenny's. Anyhow, the Times (and Jack) graciously encouraged me to post my questions on Balkinization. Here they are, for what it's worth:

1. The President has a constitutional obligation to faithfully execute the law. What does "faithful" execution consist of? In particular, when it comes to questions of war and national security, is the Office of Legal Counsel’s proper role to provide the best interpretation of the law, or instead to articulate any non-frivolous legal argument in support of the President’s policy objectives?

2. If an enemy of the United States captured non-uniformed U.S. personnel, such as intelligence officers, and interrogated them using some combination of severe stress positions, hypothermia, threats, and prolonged sleep and sensory deprivation, would you conclude that the U.S. persons had been subjected to torture or to "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions, or would you say that the enemy had acted lawfully? [This question is obviously inspired by questions that Senator Durbin asked AG Gonzales. His answer?: "[I]t would depend on circumstances, quite frankly."]

3. Does the President have the constitutional authority to engage in significant military hostilities against Iran without congressional authorization?

4. If Congress enacts legislation providing legal immunity for telecommunications corporations that assisted the government in legally dubious surveillance activities, would you agree, in turn, (i) to provide Congress with the legal rationales underlying those activities, including the representations that were made to the corporations (after all, is there any justification for withholding from Congress information that is known to corporate officials and technicians?); and (ii) to support legislation that would facilitate judicial review of the government’s surveillance activities, including provisions that would confirm individuals’ right to sue and that would significantly narrow the so-called "state secrets" privilege (but where actual technological secrets of the National Security Agency would be revealed only to judges, and not to the public)?

Also, my friend and former OLC colleague Dawn Johnsen is testifying today on similar issues before the Senate Judiciary Committee. I'll post her testimony as soon as it's available. [UPDATE: Dawn testified today. Here is her prepared statement.]

Also, for those of you who may have missed the links in the comments to Brian's post, below, here are some sites with links to additional interviews, analyses, etc., associated with last night's Frontline broadcast:

"Synopsis"


"Themes"

"Links"

Posted 12:34 AM by Marty Lederman [link]