When Alberto Gonzales would periodically stop by the Senate Judiciary Committee for oversight hearings, it was extraordinarily painful. The bulk of the poor schmo’s answers, when he wasn’t feigning a faulty memory, were so breathtakingly dishonest, it was almost comical.
Michael Mukasey, in this sense, is a breath of fresh air. His callous disregard for the rule of law comes across as far more competent and direct. After yesterday’s hearing, Dahlia Lithwick had a gem.
…Mukasey is only willing to make and defend his decisions without explaining them. Still, he is very convincing in asserting that even though his decision is secret and its rationale is secret, and all future applications are secret, he is nevertheless confident that it’s the right decision. […]
More and more frequently, we hear members of the Bush administration crying about the evils of “lawfare” — the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You’d think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it’s better to make them up in secret as you go along.
At one point, Mukasey argues that he “can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids.” When Arlen Specter points to specific instances in which Bush has done just that — including laws banning torture, FISA, and the National Security Act — Mukasey takes a pass. What’s done is done.
This is particularly problematic when it comes to waterboarding.
Enter Sen. Ted Kennedy, D-Mass., as the ghost of Christmas Future. Even if Mukasey won’t opine on past water-boarding, might he give some future guidance for future torturers? “In your letter,” says Kennedy, “you wouldn’t even commit to refuse to bring water-boarding back, should the CIA want to do so. You wouldn’t take water-boarding off the table! … Under what facts and circumstances would water-boarding be lawful?”
But Mukasey won’t speculate about future water-boarding, either, claiming he will not be drawn into “imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities.” He also refuses to tell “people in the field … what they have to refrain from or not refrain from in a situation that is not performing.”
Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey’s eyes at the witness table in the Hart Senate Building, America’s lawyer cannot hazard an opinion as to its legality.
Joe Biden, D-Del., gets Mukasey to obfuscate even further. Mukasey explains to Biden that the legal test for torture — conduct that “shocks the conscience” — has less to do with shocking the conscience than the exigency of the situation. Under his test, torture that “shocks the conscience” can be “balanced against the information you might get that couldn’t be used to save lives.” That’s not a legal rule. It’s a judgment call. Biden calls him out on it: “You’re the first person I’ve ever heard say what you just said … I just never heard the issue of torture discussed in terms of the relative benefit that might be gained from engaging in the technique.”
Jack Balkin helps summarize and translate the AG’s position:
You’re crazy if you think I’m going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal. Saying that would suggest that people in the Administration violated the law and are subject to criminal prosecution, and that previous OLC opinions have condoned war crimes. The only thing I will tell you is that I sure hope we don’t continue one of these practices in the future (lucky for me you haven’t pressed me about the others!). But don’t ask me to say that the President can’t do any of them later on if he wants to. I mean, come on, guys, I just got here, you know? I just put new drapes in my office. I really don’t want to have to get fired only three months after I started.
Oh, and by the way, the President, my boss, never violates the law. Got that?
Loud and clear.