His Turn on the Hot Seat

Congress to grill the AG pick

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Nominee Michael Mukasey accompanies President Bush to the Rose Garden.

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This much is certain: There will be no lack of questions. About the relationship between the Justice Department and the White House. About politics and prosecutions. About how best to protect the Justice Department from further scandals.

But for all the pushing and prodding expected during Michael Mukasey's confirmation hearing before the Senate Judiciary Committee this week, the former federal judge is likely to skate quickly to a full Senate vote on his nomination as attorney general.

Even if much of the questioning seems more scripted show than live drama, Mukasey's testimony should shed some light on how he views one of the central legal tensions roiling Washington: the balance between national security and civil liberties.

His answers will hardly be academic. The Justice Department is already pushing Congress to reauthorize the government's expanded wiretapping powers under the Foreign Intelligence Surveillance Act. And fresh questions about the department's terrorism practices have come up since the recent revelation of memos showing it allowed harsh interrogation practices of the sort that Congress had tried to ban.

Mukasey, a onetime federal prosecutor, is no stranger to this topic, and he approaches it with some well-defined, even controversial, opinions about how law enforcement should approach terrorism. As a judge, he often bowed to the government's desire for broad authority in national security cases, such as when he allowed the feds to hold numerous individuals as material witnesses after the attacks of Sept. 11, 2001.

Aiding terrorists. Presiding over terrorism cases—from the conspiracy trial of Sheik Omar Abdel Rahman to the detention of would-be terrorist Jose Padilla as an enemy combatant—Mukasey has found the criminal justice system inadequate to protect national security. "Current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism," he wrote in a recent Wall Street Journal op-ed.

Part of the problem, Mukasey said, is that constitutional protections for defendants have unwittingly aided terrorists. He noted that public testimony about a cellphone battery during the trial of Ramzi Yousef, the architect of the 1993 World Trade Center bombing, tipped off terrorists that the U.S. was listening. The terrorists soon changed their communication, severing the government's link to that intelligence.

Such concerns have prompted Mukasey to support a special national security court, a proposal that has riled civil libertarians. But the question remains as to how easily Mukasey as attorney general could translate his opinions into policy.