Mukasey says wiretapping terrorists is allowed

WASHINGTON - President Bush's choice for attorney general told senators Friday that the Constitution does not prevent the president from wiretapping suspected terrorists without a court order.

Michael Mukasey said the president cannot use his executive power to get around the Constitution and laws prohibiting torture. But wiretapping suspected terrorists without warrants is not precluded, he said.

"Foreign intelligence gathering is a field in which the executive branch is regulated but not pre-empted by Congress," Mukasey wrote in response to questions by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.

Mukasey's letter was made public by Leahy on Friday as part of a larger package of documents in which Judiciary Committee members asked the retired U.S. district court judge from New York to elaborate on two days of oral testimony last week.

His answers focused on queries about executive power and did not address what Leahy and other senators have said is the chief obstacle to his confirmation: Mukasey's refusal to say if an interrogation method that simulates drowning amounts to torture outlawed under domestic and international law.

A letter signed by the committee's 10 Democrats demanded that Mukasey answer that question. The panel's senior Republican, Sen. Arlen Specter of Pennsylvania, has made the same request.

A Democrat familiar with the committee's deliberations said that Mukasey may not get the votes he needs unless he answers the question about waterboarding. Leahy has refused to schedule a committee vote untilMukasey provides his answer.

In a letter dated Oct. 18 but first disclosed Friday, Leahy said he was troubled by Mukasey's answer during last week's hearings that the president may be able to act in conflict with the 1979 Foreign Intelligence Surveillance Act in ordering eavesdropping without warrants.

Leahy noted that Mukasey also said that the president could not authorize torture even if he believed it would serve his constitutional responsibilities as commander in chief.

"In both situations, the president, in authorizing such conduct, would be flouting both statutory and constitutional prohibitions based on a broad assertion of executive power," Leahy wrote.

In a reply of just over two pages, Mukasey echoed muchof the administration's legal reasoning.

"Torture and cruel, inhuman and degrading treatment are prohibited by the laws of the United States, which of course includes the Constitution," Mukasey wrote. In contrast, "the weight of authority indicates that warrantless surveillance to collect foreign intelligence is not unconstitutional so long as it is otherwise reasonable." Information for this article was contributed by Lara Jakes Jordan and Pamela Hess of The Associated Press.

Front Section, Pages 5 on 10/27/2007

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