During his recent confirmation hearings, Michael Mukasey, the former federal judge nominated to be the next attorney general, conceded that "the president doesn't stand above the law." Yet Mukasey, who is expected to be easily confirmed, also suggested that the president is entitled to ignore certain laws.
Since the law "starts with the Constitution," he said, the president need not obey a statute that interferes with his inherent constitutional authority "to defend the country." Now that the War on Terror has replaced the Cold War as a reliable rationale for extending executive power, the breadth of this authority to defend the country will be a central issue in national politics long after Mukasey completes his service as attorney general.
Is protecting national security "a loophole big enough to drive a truck through," as Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) worried? Or is it, as Mukasey said it should be, a power the president will strive to exercise with the consent of Congress, acting without congressional support only in emergencies?
The Bush administration's track record on the surveillance, detention and interrogation of suspected terrorists suggests Leahy's fears are justified. Even when there was plenty of time to seek congressional approval and every reason to think it would be forthcoming, this administration has chosen arrogant unilateralism over the cooperation Mukasey recommends so "we don't have to get into butting heads over who can and who can't."
Although the president is commander in chief of the armed forces, Congress has several explicitly enumerated powers related to national defense. In addition to the power of the purse, these include the power "to declare war," to "make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," and to suspend the habeas corpus privilege "in cases of rebellion or invasion."
If Congress passed a law that, say, purported to put the speaker of the House in charge of the armed forces, it would be clearly unconstitutional. Regulating the treatment of detainees, by contrast, is squarely within congressional authority.
In a sense, then, it's not surprising that Mukasey conceded the constitutionality of the Military Commissions Act, which established guidelines for detainee trials, and the Detainee Treatment Act, which bans "cruel, inhumane and degrading treatment." Still, it's reassuring since Mukasey was nominated by a president who initially tried to go his own way in these areas and who issued a signing statement that indicated he reserved the right to ignore the latter law when it was inconvenient.