By Ann W. Parks

From left: Prof. Neal Katyal, Georgetown Law; Prof. Walter Dellinger, Former Acting Solicitor General; Prof. Viet Dinh, Georgetown Law

On November 9, Michael B. Mukasey became the 81st attorney general of the United States — following confirmation hearings that raised questions about national security and separation of powers.

And on November 29, a panel of experts from Georgetown Law Center and Harvard Law School, as well as former Department of Justice officials, met via video conference to discuss the hot-button issues.

Georgetown Law Professor Neal Katyal moderated the discussion among the Washington, D.C., panelists; James F. Flug, Senior Heyman Fellow at Harvard, served as moderator in Cambridge. Katyal served as lead counsel in the 2006 case Hamdan v. Rumsfeld — in which the Supreme Court found that the president’s military tribunals indefinitely detaining persons at Guantanamo violated constitutional separation of powers principles as well as military and international law.

The panelists’ impressions of the Mukasey hearings ranged from “touchingly ambiguous” to “encouraging” to “profoundly depressing.” Walter Dellinger, a partner at O’Melveny & Myers and former head of the DOJ’s Office of Legal Counsel, noted what he called a “deep ambiguity” in the hearings over the essential question of whether the president is required to obey federal statutes.

This “resulted in some people thinking that Judge Mukasey is more of a breath of fresh air, by indicating more willingness to abide by acts of Congress, and others … saying he would be the ‘lawbreaker-in-chief,’” he said.

Georgetown Law Professor Viet Dinh, however, found the tone of the hearings promising. While he agreed there was ambiguity, that ambiguity resulted from some very hard constitutional issues, not deliberate obfuscation, he said.

Mukasey “truthfully says that … no person is above the law, but that everyone is under the constitution,” Dinh said. The debate, he noted, is about executive authority after a statute has been passed — not whether the president has residual power but whether the assertion of that power is correct.

The task “is to bring silence to the fore … justifying his position as why [the president] is not enforcing or not following a particular statute or mandate,” he said.

Jamie Gorelick, a partner at WilmerHale and former deputy attorney general, questioned what happens when there is a disagreement on whether a law is unconstitutional.

“Mukasey said that the president is not above the law, and I think we should all be able to agree on that, but there are instances … in which a president concludes that a part of a law is unconstitutional,” she said. “In my view that should be an extraordinary circumstance, not an ordinary one.”

Insight

Harvard Professor Charles Fried called the hearings “profoundly depressing,” owing to the nature of the hearings themselves.

“The obsessional, repetitive attempts to hem [Mukasey] in, to get him to say something that he doesn’t want to say … to trip him up, to extract from him concessions and commitments, which he doesn’t want to do … like some kind of an interrogator, with a defendant, hoping that finally the person will slip up. It’s a terrible way to run politics,” Fried said.

But others, like David Barron of Harvard, were more forgiving of the Senate.

“The Senate asked real questions … should someone be subject to waterboarding?” he said. “It’s a totally legitimate question … it gives you some insight as to how he might advise the president and other legal actors within the administration when he takes office.”

The event was co-sponsored by Georgetown Law, Harvard Law School’s Heyman Fellows Program and the Berkman Center for Internet & Society.

A Webcast is available at http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=455.

 

December 3, 2007 (AWP)