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On Nov. 9, Michael Mukasey was sworn in as attorney general of the United States, following Senate confirmation by a 53-40 vote the previous evening. He has much to accomplish � and much damage to undo � in the remaining 14 months of the Bush administration. There is abundant evidence that his predecessor was complicit in the politicization of the U.S. Department of Justice in many respects, from its emphasis on hiring “loyal Bushies” for career positions, to the firing of U.S. attorneys who put law above loyalty, to the alleged use of prosecutions of dubious merit timed to affect elections. Mukasey seems intent on depoliticizing the DOJ and restoring its credibility. Yet we are troubled by Mukasey’s responses to two avenues of inquiry at his confirmation hearings before the Senate Judiciary Committee. One was his widely reported refusal to say whether he thought waterboarding was torture, despite the fact that U.S. military courts have recognized it as torture for more than 100 years in prosecutions of enemy soldiers who waterboarded U.S. prisoners. Even more troubling was his insinuation that the Constitution may allow the president to ignore laws enacted by Congress when he takes measures that he views as safeguarding national security, such as warrantless surveillance. This radical reading of the Constitution, which subverts the separation of powers doctrine, echoes claims by other administration officials, yet is based on no judicial precedent. While it appears somewhat promising that the DOJ has recently reopened an inquiry into the National Security Administration’s use of warrantless wiretapping previously shut down when security clearances were denied investigators, Mukasey’s views on expansive executive power remain worrisome. At his ceremonial swearing-in on Nov. 14, Mukasey pledged to DOJ staff that he would “help you to continue to protect the freedom and the security of the people of this country and their civil rights and liberties through the neutral and even-handed application of the Constitution and the laws enacted under it.” We hope he meant it.

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