Two key questions

Today, the Senate Judiciary Committee will examine Michael B. Mukasey, President Bush’s nominee for attorney general, and if members posed all of the questions suggested to them by outsiders, the hearings would go on well past the end of the Bush administration.

Fortunately, most of the questions can be aggregated (as former Alberto R. Gonzales aide D. Kyle Sampson might say) into two inquiries: Will Mukasey resist the intrusion of partisan politics into the administration of justice? And does he share the administration’s troubling view that the war on terror has rendered traditional restraints on presidential power obsolete?

Nine months after Sen. Dianne Feinstein (D-Calif.) raised an alarm about the dismissal of Carol Lam, the U.S. attorney in San Diego who oversaw the prosecution of Rep. Randall “Duke” Cunningham, no smoking gun has been produced to prove that Lam was fired for pursuing a powerful Republican. But other dismissals of U.S. attorneys smacked of improper political interference. And, as Sen. Sheldon Whitehouse (D-R.I.) has noted, the number of executive branch officials authorized to contact Justice Department officials about prosecutions mushroomed from seven in the Clinton administration to hundreds under Bush.

Mukasey, a retired judge who is neither a personal nor political confidant of the president, is the anti-Gonzales -- a man fingered for his qualifications rather than his relationships. That’s certainly welcome, but he still must explain how he would counter interference from the White House. Such interference not only has affected the conduct of criminal prosecutions but the work of the Justice Department’s once-respected research arm, the Office of Legal Counsel. Under Bush, a politicized office incubated the now-infamous 2002 memo that narrowly defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.”

The second major focus of the hearings will be Mukasey’s view of the legal basis for Bush’s tactics in the post-Sept. 11 war on terror. Does the nominee agree, as a matter of law, that the humanitarian provisions of the Geneva Convention apply less stringently to the CIA than to military interrogators? Is it legal, in his view, for the agency to “render” suspected terrorists to secret prisons abroad or subject them to the simulated drowning known as water-boarding?

If Mukasey is prepared to sanction torture, Congress should wonder whether he can ably serve the nation.

Beyond torture, Mukasey should be asked to amplify the view he expressed in an Op-Ed article that civilian courts -- including the one in which he successfully prosecuted terrorist conspirator Omar Abdel Rahman -- are “not well suited” to dealing with accused terrorists.

In a similar vein, does he accept that inmates at Guantanamo Bay have a right to habeas corpus and thus to a review of their detention? As with other aspects of his confirmation, there is only one right answer to that question.