Senators clash with Bush nominee Mukasey

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WASHINGTON, Oct 18 (Reuters) The US Senate Judiciary Committee clashed today with attorney general nominee Michael Mukasey over what constitutes torture and whether the White House could be found in contempt of Congress.

Members of the panel weighing whether the nominee can restore public confidence in the Justice Department, grilled Mukasey about President George W Bush's national security policies, including domestic spying and interrogation methods.

Under questioning, Mukasey said torture violates the US Constitution. But he declined to specifically say whether waterboarding -- simulated drowning -- is torture.

''If it amounts to torture, it is not constitutional,'' said Mukasey, 66, a retired judge and former federal prosecutor.

''I'm very am disappointed in that answer. I consider it purely semantic,'' Sen. Sheldon Whitehouse, a Rhode Island Democrat, told Mukasey.

Exchanges during the second day of Mukasey's confirmation hearing contrasted sharply with the first session when he won bipartisan praise and lawmakers predicted easy confirmation.

Mukasey had promised to stand-up to the White House in the pursuit of justice and review Bush's national security policies to make sure they are sound.

He is still likely to be confirmed. Yet senators challenged him on a number of fronts.

Bush nominated Mukasey in an effort to restore the integrity of the Justice Department after the stormy tenure of former Attorney General Alberto Gonzales.

Gonzales resigned under pressure from Democrats and fellow Republicans who accused him of having politicized the department, particularly in the firing last year of nine federal prosecutors.

The House of Representatives Judiciary Committee in July voted to cite a current and a former Bush aide for contempt for refusing to testify in its investigation into the dismissals.

The two declined to appear at a congressional hearing after Bush claimed executive privilege, the right to withhold documents or testimony. And two Justice Department opinions supported the president's position.

Committee Chairman Patrick Leahy, a Vermont Democrat, challenged the opinions, and told Mukasey the law requires such citations be presented to a grand jury.

''What do you do in a case like that?,'' Leahy asked.

Mukasey cited the opinions, saying, ''When the president, in the assertion of the privilege, is relying on a Justice Department opinion ... it simply can't be appropriate for the same department that offered the opinion then to turn around and prosecute somebody who followed it.'' Leahy told Mukasey he was dissatisfied with the response and wanted a more expansive one.

''I would like your answer back, in writing ... before the nomination is brought before the committee'' for a vote on whether to send it to the Senate for confirmation, said Leahy.

At the request of Leahy, Mukasey provided assurances he would not interfere with a Justice Department probe into whether Gonzales lied to Congress about the fired prosecutors and his handling of Bush's spying program.

Sen. Arlen Specter of Pennsylvania, the panel's top Republican, asked Mukasey about the warrantless surveillance program Bush secretly began after the Sept. 11 attacks.

Specter said the program violates the 1978 Foreign Intelligence Surveillance Act, which requires court approval of spying. Bush maintains he had the war-time power to do it.

Asked if he believed Bush violated the law, Mukasey replied: ''As I understand it, the president believed at the time and still believes that FISA was not the only applicable statute'' and that was acting under a use of miliary force resolution by Congress.

Specter replied: ''Judge Mukasey, I don't think anybody ever really seriously contended that our resolution ... authorizing the use of force encompassed a violation of FISA.'' REUTERS RSA RAI2344

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