WASHINGTON -- Michael Mukasey, the retired judge nominated to be attorney general, is called a "law and order" conservative. That description is, however, not especially informative now that the Bush administration's sweeping claims of presidential powers have unsettled some understandings of what the law is. The following questions, if asked at Mukasey's Senate confirmation hearings, might reveal whether he considers some of these claims extravagant.
-- The Bush administration says "the long war" -- the war on terror -- is a perpetual emergency that will last for generations. Waged against us largely by non-state actors, it will not end with a legally clarifying and definitive surrender. The administration regards America as a battlefield, on which even an American citizen can be seized as an "enemy combatant" and detained indefinitely. You ruled that presidents have this power, but you were reversed on appeal. What do you think was the flaw in the reasoning of the court that reversed you?
-- If the Senate musters 60 votes to pass Jim Webb's bill requiring that the deployments of troops in Iraq be no longer than their out-of-theater respites, the president almost certainly will veto it as not only unfeasible but an unconstitutional abridgement of the president's exclusive powers as commander in chief. James Madison, however, wrote: "Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws." Could Bush correctly veto Webb's legislation on constitutional grounds?
-- In 1991, the Senate voted 52-47 to authorize expelling Iraqi forces from Kuwait. Dick Cheney later said that if Congress had refused to authorize force, "From a constitutional standpoint, we had all the authority we needed," meaning the president's exclusive power to conduct foreign affairs. Do you agree?
-- On Sept. 14, 2001, Congress authorized the use of force against those who committed or were implicated in the attacks three days before. President Bush praised Congress vaguely, for "taking this action." Notice he did not praise it for authorizing force. Perhaps he believes that to call Congress' action "authorization" would suggest that authorization was constitutionally necessary. Was it?
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