While Mukasey doesn’t think there’s an inherent presidential right to torture — which he said is explicitly prohibited by the Constitution — that’s not to say he doesn’t take a broad interpretation of the president’s Article II authority. Reiterating an answer he gave yesterday, he told Sens. Patrick Leahy (D-VT), Dianne Feinstein (D-CA) and Russ Feingold (D-WI) that the president, for example, can authorize surveillance outside the Foreign Intelligence Surveillance Act.
Feingold challenged Mukasey on exactly what he’s saying. Was Mukasey arguing that any activity to “safeguard against a national security threat” would justify violating a statute? After some legal argumentation, Mukasey replied, essentially, that going outside a statute is an extreme step, and implied that he’ll take steps to ensure that “push doesn’t come to shove” between presidential authority and statutory limitation. But he left the door open for at least some nebulous presidential power that trumps congressional attempts at limitation. John Yoo might have a bad headache, but his skull is probably intact.