FOX News Channel "Fox News Live"-Transcript

Interview

FOX News Channel "Fox News Live"-Transcript

MS. KELLY: Joining us now, Pennsylvania Senator Arlen Specter. He is the ranking Republican on the Senate Judiciary Committee and the good senator says he will back Mukasey's nomination.

Good morning.

SEN. SPECTER: Good morning, Megyn. Nice to talk to you.

MS. KELLY: Good to have you hear with us, senator. We appreciate it.

So were you on the fence a little bit about Mukasey because you didn't like the answer about waterboarding. Now, you say you're going to vote for him. What's changed your mind?

SEN. SPECTER: We have now been able to deal satisfactorily with the water boarding issue because I talked to Judge Mukasey again yesterday and he assured me that he would uphold the constitutional authority of Congress to ban water boarding as torture and he said that if such legislation was passed that he would hold that the president did not have the power under Article 2 as commander-in-chief to overrule that decision.

So that now the issue is squarely before the Congress, which is where it ought to be.

MS. KELLY: So are you considering introducing legislation that would ban water boarding, senator?

SEN. SPECTER: Well, it's already been introduced. We have legislation pending, but I would be prepared to introduce it. I have voted in the past to ban water boarding, but as we now have the matter focused, it's a decision for the Congress and really in a representative democracy, it's up to the Congress to say what our moral standards are, how far we ought to be to protect the country from terrorism and Judge Mukasey has said that he would abide by that decision and direct the president to do it on constitutional grounds so I think that's a good resolution to the issue.

MS. KELLY: How does past advice to the president by Alberto Gonzales or others factor into this? Because if indeed the United States has been water boarding al Qaeda and other prisoners because the Department of Justice told the president it was okay and now a new attorney general tells the president it's not okay because Congress passed this law. What is the president to do?

SEN. SPECTER: Well, Congress hasn't passed the law, so that if Congress passes the law, the president is confronted with a new situation and the president has asserted Article 2 power under the Constitution as he did under the Foreign Intelligence Surveillance Act. A statute cannot affect the constitutional authority of the president.

MS. KELLY: Right.

SEN. SPECTER: But now we have the attorney general saying that if Congress says water boarding is illegal, that he will direct the president to abide by that and Mukasey answered the first question I asked him at the hearing a couple of weeks ago that if the president disregards his advice on a critical issue, that he would resign just as Eliot Richardson did back at the Saturday Night Massacre.

So I think we have pretty good assurances on this issue and it puts the ball squarely in the court of the Congress, which is where it ought to be.

MS. KELLY: Yeah, this is, I know, been an issue that's been near and dear to your heart, the separation of powers. You felt the White House has been overreaching in recent years.

SEN. SPECTER: Yeah.

MS. KELLY: Now, it looks like you've got an attorney general nominee with whom you are somewhat happy.

Senator Arlen Specter, we look forward to watching the vote this afternoon. It looks like it's going to be an up vote instead of a down vote. Do you confirm?

SEN. SPECTER: I think that is likely, Megyn, and I'm still concerned that Judge Mukasey may be a little too far on the side of executive power, but within reasonable bounds.

MS. KELLY: Understood.

SEN. SPECTER: Very good change from the last attorney general.

MS. KELLY: Thanks so much. Have to leave it at that because we're out of time.

Senator Arlen Specter, take care. Thanks.

Source