Mukasey makes matters more difficult

After Alberto Gonzales’ humiliating and painful tenure as the nation’s chief law-enforcement officer, I was beginning to get my hopes up about Attorney General nominee Michael Mukasey.

Right off the bat on Wednesday, he rejected the infamous Bybee memo, and compared U.S. torture policies to Nazi Germany. The rest of the day was nearly as encouraging, with Mukasey vowing to end Justice Department “stonewalling,” and insisting he would resign if Bush tried to do something unconstitutional. No more partisan considerations in employment, Mukasey said. No more “unilateralism,” he promised.

Everyone was impressed, and said so. And then Day Two happened.

President Bush’s choice for attorney general, Michael B. Mukasey, embraced some of the administration’s most controversial legal positions yesterday, suggesting that Bush can ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws.

Mukasey struck a different tone on the second and final day of his confirmation hearing, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president cannot override constitutional and legal bans on torture and the inhumane treatment of prisoners.

How bad was it? It’s hard to believe his nomination is in jeopardy, but Mukasey offered ample reasons for senators to reject him as the next Attorney General.

Mark Kleiman has a good post on the subject.

I understand Mukasey is supposed to be a reasonably good guy, by comparison with the run of Bush appointees. But if Mukasey won’t say that waterboarding is torture and claims that the President has some undefined power to violate statute law — even criminal laws, such as the ban on torture and other war crimes — under his “Article II powers,” then why should the Senate Judiciary Committee even bring his nomination to a vote?

Quite right. In response to questions about authorizing surveillance, Mukasey suggested there may be circumstances in which the president can ignore federal law. In response to questions about waterboarding, Mukasey would only say, “If waterboarding is torture, torture is not constitutional.”

As Sullivan put it, “An attorney general who believes a president has a permanent right to ignore the rule of law because peacetime is now wartime for ever, is an attorney-general defending the rule of one man over the rule of law.”

All of this led some senators to wonder what happened between Wednesday’s Mukasey and Thursday’s Mukasey. Judiciary Committee Chairman Pat Leahy (D-Vt.) noted, “[O]n a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law. That seems nowhere near as bright a line today.”

Given the circumstances, one has to wonder if perhaps the White House intervened on Wednesday night. Mukasey rejected the idea.

At one point, a flustered Leahy asked Mukasey “whether you received some criticism from anybody in the administration last night after your testimony,” leading to a different set of answers at yesterday’s hearing.

“I received no criticism,” said Mukasey, who was measured and soft-spoken throughout his testimony. “I had dinner with my family last night.”

I’d like to think Mukasey would be a step up from Gonzales, though that’s not saying much. But yesterday’s testimony suggests our next Attorney General may share some of the dangerous ideas that plagued our last Attorney General.

We need much more than a step up from Alberto for an Attorney General. I suppose that will never happen as long as George W. is in office. So, if this guy doesn’t make it, when’s the next Congressional recess? Thanksgiving?

  • Based on the characterization of David Addington in this week’s Frontline, it’s easy to imagine he buttonholed Mukasey after the hearing, gave him what-for, and added “And if you tell anyone we spoke, I will end you.”

    Still, aren’t we better off with an AG nominee who all-but openly toes the administration line rather than everyone we’ve had before, who do it in secret?

    By the way, did the power of Congress to set rules for the military somehow vanish? How did we get to the point where the military, and indeed the entire executive branch, is the personal plaything of the president?

  • Methinks Unka Dick made a testy phone call and he and Mukasey had a come to Jesus (W) discussion. Mukasey saw the “light” and was “healed” of any independant thoughts he might have had during the day on Wednesday. That deep sucking sound that was heard was Mukasey’s soul going through the tapped phone wires into Unka Dick’s gaping maw.

  • I’m this close to leaving the Democratic Party. What good are they if they can’t, as a whole, stand up for the Constitution and act as a check against the unlawful actions of this executive branch (wiretapping and letting the telecoms off the hook for example!) ??

    This political system is turning me off big time.

  • “why should the Senate Judiciary Committee even bring his nomination to a vote?”

    Because we are plagued with Vichy Dems.

    I love how all the Serious People say he’ll be confirmed even before he answers questions which could (if we had real Democrats) disqualify him.

    What’ll happen is they’ll bluster and pose and fool no one, he’ll finally give them answers they can “accept”, but he’ll be crossing his fingers inside a jar of legal goo, and they’ll know he’s lying.

    Kabuki. Dance.

  • Bush/Cheney could not afford to nominate someone who might undermine their radical agenda and expose them to the true illegality of what they’ve done. The trick was to find someone who could say the right things during confirmation hearings with a straight face. Seems Mukasey wasn’t quite able to pull it off, but no matter — I’m sure Dems will give Bush/Cheney the benefit of doubt and confirm him anyway.

  • What else did we actually expect from a Bush administration nominee? The vetting process went like this:

    Do you believe in the rule of law?

    Yes.

    Do you believe that the President’s Article II powers trump everything, including the rule of law?

    Yes.

    Then you’re our boy.

  • “I’d like to think Mukasey would be a step up from Gonzales,”

    A dead fish would be a step up from Gonzales.

    I realize a number of AG’s have gone to jail, most recently Nixon’s AGs come to mind, and I don’t know that much about too many of this country’s AGs.

    Having said that, can anyone come up with a list of AGs who might give Gonzales some competition for the worst AG in history????

  • This political system is turning me off big time.

    I have long believed, on I think fairly good evidence, that this resposne is an intentional part of the Republican plan. Because the Dominionists are less likely to ‘turn off’, and the corporations who are in it solely for the big money never will. If everyone else drops out of the process, it is that much easier for the Robber Barons to do their thing.

    I’d like to think Mukasey would be a step up from Gonzales, though that’s not saying much. But yesterday’s testimony suggests our next Attorney General may share some of the dangerous ideas that plagued our last Attorney General.

    In some ways, Mukasey may be a step down, or at least a step more dangerous if he really does share some Alberto and Dubya’s ideas. The damage Ali G could do was limited by the low wattage of his intelligence (and his obviously bad memory and even worse ability to lie without it being transparent). Mukasey may bring actual intelligence and skills at deviousness to the agenda that will be considerably more problematic than Ali G could have been.

  • “but Mukasey offered ample reasons for senators to reject him as the next Attorney General.”

    but they won’t. they won’t even come close. i am so sick of these wimpy senators. i’m getting especially impatient and angry (and very disappointed) with my own senator leahy.

  • My theory about Mukasey is that he is well-enough regarded in the legal community to put a respectable face on what will ultimately be a figurehead position. They will use him when he shows that he is on board with their agenda, and they will go behind his back when he doesn’t.

    The FISA “fix” – assuming it passes- appears to put a great deal of power in the AG’s hands, but if you peel away a layer or two to the “legal directive” language, it seems clear to me that it was written in such a way that it makes the AG the WH’s errand boy, and provides a nominal legal justification for whatever they want to do. Problem solved.

    I’m kind of at the point where, if the WH nominated Jesus Christ Himself, I would assume that JC had gone to the dark side, not that He had taken the job in hopes of making things right.

    How sad is that?

  • I really don’t see what the fuss is about. Seems like wheel-spinning to me. Bush will NEVER propose anyone for his attorney general who doesn’t go along with his agenda after his confirmation. I guess his critics do need to point out Mukasey’s flip-flops, if for no other reason than to further acquaint the public with Bush’s illegal policies.

    But in the end, it really doesn’t matter as far as WH operations go. Bush (Cheney) will tell his next AG what positions to take.

  • At one point, a flustered Leahy asked Mukasey “whether you received some criticism from anybody in the administration last night after your testimony,”

    “I received no criticism,”said Mukasey

    Leahy should know better by now than to ask a question which can be dodged. He should not have characterized the nature of the discussion which Mukasey might have had. A better question would have been, “Did you have any discussions following yesterdays testimony with anyone in the adminstration? And if so, were you asked to change in anyway your responses to questions in certain areas?” I know he’s not AGAG but this is still BushCo. and you can’t assume good faith answers from any of them.

  • The principle of the Unitary Executive must die. That the AG should be an extension of the will of the POTUS is wrong. If the accounting department of a publicly traded company was part of the Unitary CEO theory of corporate government, the SEC & stockholders would rightfully complain.

    A truly strong company or country is strengthened by internal checks, balances, and dissent.

  • I still don’t understand this “wartime” business that everyone assumes that we are in the midst of. War with whom? When did Congress declare war? Against what country are we waging war? Even if it wanted to, Congress couldn’t declare war because we’re not fighting against another government. It’s just one more fraud being perpetrated against the Constitution. Maybe you could say we’re at war with our own government. Yeah, that’ll do it, won’t it? How clever. Okay. Kind of like we don’t do torture, because we define torture as that which we don’t do.

    Got it.

  • Mukasey seems willfully unclear on whether waterboarding is torture, though, thankfully certain that if it is torture, it is unconstitutional.

    Perhaps he would be interested in some empirical research? We could subject him to it, and then he would have direct evidence upon which to base his decision. Since the opinions of civilized people dating back as far as the Spanish Inquisition seems to have still somehow left it vague for him. That way, he’d be fully equipped for the office he is going to assume, where the question is, sadly, not a hypothetical.

    What is wrong with these people?

  • Mukasey went against the administration once so there is hope. Picking out who is least insane of Bush nominees is at best disappointing. If the senate rejects this one then there will always be another one but the previous comments are right…Bush will not nominate anyone who might be detrimental to his administration. To get a fair AG we must first get rid of Bush…something this congress is unwilling to do.

    Really, the senators in good conscience cannot approve of anyone Bush might nominate. Their best bet is to go for whoever is least enthusiastic about promoting the Bush agenda. There are those who will follow orders and do it and then there are those who draw up the plans for you and then do it enthusiastically

  • Hard @ 15 MIGHT have it right.

    Perhaps he’s being evasive for a GOOD cause.
    He doesn’t want to be withdrawn if he shows himself up to be hostile to the new imperial presidency.

    He didn’t say we were at war. He said a wartime president could suspend certain restrictions.

    He said, “If waterboarding is torture, torture is not constitutional.”
    but by rules of logic, If waterboarding is not torture, that doesn’t rule out torture being unconstitutional.
    He also didn’t say waterboarding WASN’T torture.
    If anything, he cut off some wiggle room.

    Oddly enough, what bugged me the most was his saying he;’d resign if Bush did unconstitutional things.
    Thanks for nothing, pal. What we need is a guy ready to PROSECUTE a president that breaks the law, not a guy willing to pack his bags when he’s needed most.
    (Of course, he didn’t say he wouldn’t prosecute BEFORE resigning….) again. Might he be vague for GOOD reasons?

    As always, we must be mindful of who Bush would send us NEXT.

  • Could this position-switching be an intentional political strategy? First, say what the left wants to hear and then say what Bushies want to hear? Then nobody knows what you’d do — you always have a response given earlier that’s the opposite of a particular concern raised by something you said today.

    Sure looks like it to me.

  • What is so sad is that the criteria for a good AG is based on how willing he is to stop the president from continuing to break the law, and to help stop him from continuing to trash the constitution.

  • Hark at #15: Are we really at war?

    I have gotten annoyed about that same issue many times. The GWOT seems more like a Madison Avenue ad campaign than a real war. But I just today went to google to find out about declarations of war and was depressed to find out that our Congress no longer operates in those terms … it is all about “Authorizations to use military force”. See the list of those at wikipedia:
    http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States
    The depressing thing is that when the Authorization for Iraq was being debated, I don’t believe a significant percentage of US citizens were aware that that was as good as a declaration of war. At this point I think we do have grounds for demanding that Congress declare the Iraq adventure complete, because the opponent was Iraq, and now that Iraq has it’s own constitution, how can the US Government claim to still be at war with Iraq? A little more problematic is the Authorization (Decl of War) against the Taliban and Al Qaeda that resulted in military operations in Afghanistan. I’d love to say that THAT war is over, but I don’t think it is. So we are still at war. I can’t wait for 2009.

  • “I received no criticism, just about a thousand death threats and a severed horse head from Cheney”

  • Why do so many pundits preface their statements with “I’m sure he’s a good guy, but …”? These people aren’t “good guys.” They’re intent on destroying the rule of law and the constitution. I don’t want to have a beer with them.

  • If an Attorney General agrees wit the unitary presidency as created and practiced by V.P. Cheney, why bother to have an Attorney General?

  • Man oh man.

    The nominee for the highest law enforcement position in the country condones breaking the law.

    Vote him down.

  • It turns out that Mukasey’s position is no different from Bush’s. Torture is wrong, it’s illegal, it’s unconstitutional, it’s an abomination…and ‘that’s why America does not torture’. So long as you define torture in any way that suits your present purposes. Same old same old.

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