WASHINGTON President Bush's choice for attorney general told senators Friday the Constitution does not prevent the president from wiretapping suspected terrorists without a court order.
Michael Mukasey said the president cannot use his executive power to get around the Constitution and laws prohibiting torture. But wiretapping suspected terrorists without warrants is not precluded, he said.
"Foreign intelligence gathering is a field in which the executive branch is regulated but not pre-empted by Congress," Mukasey wrote in response to questions by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.
Mukasey's letter was made public by Leahy on Friday as part of a larger package of documents in Judiciary Committee members asked the retired U.S. district court judge from New York to elaborate on two days of oral testimony last week.
His answers focused on queries about executive power and did not address what Leahy and other senators have said is the chief obstacle to his confirmation: Mukasey's refusal to say if an interrogation method that simulates drowning amounts to torture outlawed under domestic and international law.
A letter signed by the committee's 10 Democrats demanded that Mukasey answer that question. The panel's senior Republican, Pennsylvania Sen. Arlen Specter, has made the same request.
Several lawmakers have publicly said their vote depends on whether Mukasey equates waterboarding with torture. Some Republicans have said privately they also would be concerned if Mukasey doesn't answer that question.
Mukasey's nomination needs support from 10 senators on the 19-member panel to advance to the full Senate with a favorable recommendation. A Democrat familiar with the committee's deliberations said that Mukasey may not get the votes he needs unless he answers the question about waterboarding. Leahy has refused to schedule a committee vote until Mukasey provides his answer. Democratic aides said Leahy's question about executive power is a secondary, but still important matter. It wasn't immediately clear whether Mukasey's answer would be deemed acceptable by the lawmakers themselves.
In a letter dated Oct. 18 but first disclosed Friday, Leahy said he was troubled by Mukasey's answer during last week's hearings that the president may be able to act in conflict with the 1979 Foreign Intelligence Surveillance Act, or FISA, in ordering warrantless eavesdropping.
Leahy noted that Mukasey also said that the president could not authorize torture even if he believed it would serve his constitutional responsibilities as commander in chief.
"In both situations, the president, in authorizing such conduct, would be flouting both statutory and constitutional prohibitions based on a broad assertion of executive power," Leahy wrote. "I am concerned that this legal justification could lead to a continuation of the kind of warrantless surveillance in violation of statute that we have seen."
In a reply of just over two pages, Mukasey echoed much of the administration's legal reasoning.
"Torture and cruel, inhuman and degrading treatment are prohibited by the laws of the United States, which of course includes the Constitution," Mukasey wrote. In contrast, "the weight of authority indicates that warrantless surveillance to collect foreign intelligence is not unconstitutional so long as it is otherwise reasonable."
FISA requires a warrant signed by a secret court before the government can wiretap anyone in the United States believed to be international terrorists or agents of foreign powers. The law also requires a warrant to tap any computer and phone lines inside the country, regardless of who is on either end.
Bush's controversial eavesdropping program targeted people outside the nation's boundaries who are believed to be members of al-Qaida, according to the Justice Department. Details of the program are classified, but it apparently eavesdropped on lines inside the United States without court permission. It argues that changes in technology mean a large portion of purely foreign communications pass through the United States, and the outdated surveillance law prevents the collection of needed intelligence.
Civil libertarians and privacy advocates worry the program vacuumed up many Americans' communications without the protections that the FISA court orders provide.