Mukasey

When his name first came down, Michael Mukasey seemed like an admirably non-terrible choice for the job of attorney general. But asMark Kleiman says the hearings process has revealed him to be completely unacceptable:

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? If he says he hasn't read the latest torture memos or decided whether waterboarding is torture, Sen. Leahy ought to tell him to read the memos and observe a waterboarding session and come back when he's done his homework.

Right. These hearings need to mean something. They shouldn't merely be an opportunity for Senators to preen and ask question that maybe just maybe the nominee will screw up on and humiliate himself with. In particular, if the nominee avoids saying the abhorrent ("I endorse torture and believe the president can violate laws against torture and order others to do so without consequence") primarily by refusing to answer questions, then you have to shut him down. The president is entitled to a degree of deference with his nominees, but certainly not a degree that extends to just not explaining what the nominee is saying when Senators question him on the most controversial issues facing his department.

Comments

Mukasey rejects the Magna Carta and believes that habeas corpus is a right only explictly granted to U.S. citizens. That alone disqualifies him from just about any position in law that he might want.

Posted by Walker | October 19, 2007 11:09 AM

Why don't we just keep it simple, and that if the Spanish Inquisition used a technique, that's a prima facie case that the technique is torture.

And, in fact, the Spanish Inquisition used a waterboarding equivalent, called toca.

Case closed. The only people who want to make this a complicated issue are the torturers. But it's not complicated.

Posted by lambert strether | October 19, 2007 11:10 AM

Seems to me that since water-boarding apparently isn't really torture, we should give this Mukasey fellow a good long session of water-boarding in order to discover whether he's *really* failed to read those memos or is just being a little "deceptive" in his answers...

Posted by RKU | October 19, 2007 11:15 AM

Someone help me out here. When was the last time a cabinet nominee was NOT confirmed? Not had a nomination withdrawn; I mean actually had the Senate vote against confirmation.
The reason I ask is that, to paraphrase Digby, all these "hearings" and whatnot are looking more and more like Kabuki theater, all full of drama and surprise revelations but not actually accomplishing anything. I'm frankly appalled that not one Senator has mentioned that Gonzalez essentially swore on a stack of Bibles that Americans wouldn't torture, and as everyone now knows, this appears to have been a Bush administration practical joke at the rest of America's expense.
You'll excuse me if I didn't find it funny.
And if this joker is going to pretend he doesn't know what constitutes torture, why give him the benefit of the doubt? You mean to tell me that there's no one that the Bush administration can come up with at this point who has both a clean record and a history of not allowing medieval treatment of prisoners?

Posted by jonathan | October 19, 2007 11:22 AM

Meaningful hearings conducted by senators? Why not ask your dog to recite Shakespeare?

Posted by y81 | October 19, 2007 11:37 AM

if the Spanish Inquisition used a technique, that's a prima facie case that the technique is torture.

Lambert, I yield to none in my opposition to torture, including waterboarding, but that's not a sensible test. The Inquisition used to pray a lot, for example, but that doesn't make prayer torture. We're the reality-based ones--we can't start embracing logical fallacies.

Posted by rea | October 19, 2007 11:47 AM

Immediately - and I mean immediately - after Mukasey refused to tell Senator Whitehouse whether waterboarding was torture, I watched Senator Mikulski (D-Md) begin his questioning by smugly telling Mukasey that he was completely satisfied with Mukasey's position on torture and that it was clear that Mukasey would immediately put a stop to anything he deemed to be torture as Attorney Genereal.

Mikulski had a huge, stupid grin on his face when he said it. The smile conveyed his message perfectly: I do not care about torture, nor do I care about your answer. This is a Democratic Senator I'm talking about.

It was sickening.

Posted by owenz | October 19, 2007 12:09 PM

What makes Mukasey so frightening is his answers are even worse than Gonzalez's responses. Gonzalez lied but at least said he knew what torture is; Mukasey doesn't even know what it is.

Mukasey's record is one of upholding presidential power. He even mentioned that at the present time the United States itself could be considered a battleground. If so, it follows that anyone of us can be seized and locked up forever without being advised of the charges against us.

The US Supreme Court upheld that right when a person was seized in Afghanistan saying that Afghanistan was a battlefield. Mukasey thinks the battlefied also extends to the US.

Senator Feinstein, one of the few bright lights in this hearing. brought out that response from him. So we have a man not only knowing what torture consists of but thinks we are on a battleground here in the USA.

Hell maybe Bush won't start picking up dissenters but with guys like Mukasey around maybe Guiliani will think that's a good idea.

I think Bush snookered

Posted by Llyonnoc | October 19, 2007 12:10 PM

CORRECTION: I mispoke. The smug, grinning idiot I watched on C-Span last night was Senator Cardin (D-Md.).

Posted by owenz | October 19, 2007 12:15 PM

Owenz,
Senator Mikulski prefers the use of feminine pronouns when one references her. Are you sure it was Senator Mikulski you saw?

Posted by Njorl | October 19, 2007 12:15 PM

ok then

Posted by Njorl | October 19, 2007 12:16 PM

Given the --um-- proclivities of the current infestation of the executive branch & their implications in re the probable behavior of ANY nominee for AG, maybe no attorney general is better than Mukasey or anyone else Bush might nominate. Methinks the best approach to any nomination by Bush to any vacant post at this point is no response at all. But there I go again, dreaming idly as the day goes by...

Posted by dolphy | October 19, 2007 1:07 PM

I agree the Mukasey is horrible and unacceptable, at best highly disingenuous in his testimony, but the problem is that the Acting AG is supposedly even worse and can stay for most of the rest of Bush's second term if Mukasey isn't confirmed.

Also, kudos to Sheldon Whitehouse. Best Dem confirmation hearing questioner in the Senate, bar none. Credit where credit is due, right?

Posted by bob | October 19, 2007 2:17 PM

OK, rea, point taken on prayer.

How about the Spanish inquisitions "enhanced interrogation" techniques? Just check their manual under "T", for pity's sake.

Posted by lambert strether | October 19, 2007 2:32 PM

In front of the Senate, Mukasey came across exactly as billed: terrible on executive power, and otherwise acceptable. This was the read on him from Day One.

This is better than the alternative: recess appointment of a Ted Olsen clone. I'd take it. Nothing short of an impeachment is going to stop this gang's assertion of executive power, but Mukasey could do something useful about DoJ corruption.

Posted by Joe S. | October 19, 2007 2:56 PM

Also, kudos to Sheldon Whitehouse. Best Dem confirmation hearing questioner in the Senate, bar none. Credit where credit is due, right?

Oh, I don't know about that. Did you watch Whitehouse? His question on waterboarding was strictly a follow-up of Durbin's questioning right before. And immediately after receiving the unsatisfactory waterboarding answer from Mukasey, Whitehouse launched into a 5-minute speech on how torture is "ineffective," during which time he used up virtually all of his allotted time without asking Mukasey a single question. While I suppose it is relevant whether or not torture "works" in terms of intelligence gathering, Whitehouse completely missed the point. What matters from Mukasey's position is only if torture is legal.

The five questions Whitehouse asked on waterboarding were great, but he spent the rest of his time speech-a-fying instead of asking questions. Typical ineffective Democratic Senator, except for when he went off script.

Posted by owenz | October 19, 2007 3:20 PM

Lambert--the Spanish Inquisition was in a lot of respects much better than the Bush administration--they was much attached to due process of law, as they understood it, for example. They had rules and they followed them, well, religiously.

A better example is the behavior of the jpanese toward prisoners in WW II--Japanese soliders who waterboarded prisoners were found guilty of war crimes after the war and hanged. See, e. g.,
http://robinrowland.com/garret/2005_11_01__archive.html

The fate of Haruzo Sumida ought to be haunting people like Bush, Cheney and Gonzales . . .

Posted by rea | October 19, 2007 3:21 PM

Walker wrote, Mukasey rejects the Magna Carta and believes that habeas corpus is a right only explictly granted to U.S. citizens. That alone disqualifies him from just about any position in law that he might want.

It's not clear he even accepts h.c. for citizens on US soil. On 2007 Sep 17, Glenn Greenwald wrote,

Judge Mukasey's respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as 'enemy combatants,' and that they need not be charged with any crimes. He thus rejected Padilla's claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

On 2007 Oct 18, GG wrote:

Just to underscore the reasons why these issues are of unparalleled importance, consider -- again -- the unbelievable event that happened yesterday at the Senate confirmation hearing of Michael Mukasey. Mukasey is someone who, as a federal judge just a few years ago, ruled in the Padilla case -- literally -- that the President has the authority to imprison American citizens indefinitely, even when detained on U.S. soil, without so much as having to charge them with any crime.

And when he was asked yesterday explicitly whether he would advise the President that he has the power to "seize U.S. citizens on U.S. soil and detain them indefinitely without charge?," all he would say in response was: "I certainly can't say as of now there is clear authority authorizing what I thought there was authority to authorize in Padilla" (a concession he made grudgingly, only after claiming it was an "open" question and only after he made a series of legal arguments as to why the President does have that power).

The very idea that a nominee for U.S. Attorney General is explicitly open to the possibility that the President can indefinitely imprison U.S. citizens on U.S. soil with no charges is unfathomable. That is the most extreme, un-American and tyrannical power that exists. And yet, not only does his answer trigger virtually no mention by our media, it is almost certain that Mukasey will be confirmed overwhelmingly by the Senate without a ripple. That is why there is no higher priority than forcing attention on these issues and supporting and rewarding those rare instances of meaningful action -- such as Dodd's today -- in defense of the rule of law and our basic constitutional liberties.

Not fit for town dogcatcher, say I.

Posted by liberal | October 19, 2007 3:57 PM

Matt throws back the bone that was thrown him yesterday...

Good Matt! Good! Now fetch something on Iran!

Posted by Richard Steven Hack | October 19, 2007 7:20 PM

Phooey. The hearings revealed nothing that a whole lot of people didn't know all along.

Posted by Gaius Sempronius Gracchus | October 20, 2007 10:48 AM

You all would do well to learn something about the law of executive power. It is absolutely the case that the president has some undefined power to violate statutory law, including criminal law. The President has certain powers and Congress cannot eliminate them by passing a law, nor can a president give those powers away by signing such a law (and especially cannot give away the power of future presidents). Waterboarding's a different matter, but if Mukasey gave a different answer on presidential power he would have exposed himself as knowing absolutely nothing about the constitutional role of the executive branch, which really would have exposed him as someone not fit to serve as AG. While the Bush Administration's assertions of the expansiveness of these inherent powers are often ludicrous, the notion that they exist to some degree is not controversial.

Posted by PaleFire | October 20, 2007 7:10 PM

To the Editor:

It is incredulous that following Michael B. Mukasey's testimony on October 20, so few members of the Senate, neither the New York Times' editorial page nor any of the Times'd op-ed columnists, and few national political pundits have commented critically on Judge Mukasey's statements on the extent of a President's powers, let alone have declared that Mukasey is not competent to serve as the next Attorney General of our nation.

For clearly, by his testimony before the Senate Judiciary Committee, on the scope of the constitutional powers of the head of the Executive Branch of our Federal Government, Mukasey has irrefutably established that he is unqualified to serve as the next Attorney General of the United States. Were Mukasey to become Attorney General, it would add significant credibility to George Bush's claim to all-but-unlimited authority in governing our nation, this at the expense of Congress, the Courts, State and local governments, and the rights, liberties, and privileges of the American people.

In the absence of the availability of a full transcript of his testimony before the Judiciary Committee, reference can only be made to two aspects of his testimony.

Mukasey appears to have stated that as the Constitution is a part of the Law of the land and as the President is required by the Constitution to "...take Care that the Laws be faithfully executed...", the President is empowered to determine whether any law or part of a law enacted by Congress is constitutional and to act accordingly. This is an absurdity. In effect, Mukasey appears to contend that, in addition to his veto power, the chief execution has the power to determine the constitutionality of legislation enacted by Congress. It thereby renders meaningless the constitutional principle of Separation of Powers, it emasculates the law-making authority of Congress, and it ignores the distinction clearly made as between the Constitution and the LAWS enacted by Congress, in Subsection 18, of Section 8, of Article I of the Constitution. In effect, Mukasey is endorsing the unlimited powers of the President, as advocated by Bush, Cheney and Gonzales.

Suffice it to note that on August 8, 2006, the American Bar Association adopted a Resolution on a related matter, the first paragraph of which read as follows:

"RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress."

But Mukasey is also seriously and dangerously in error in attributing to the President, as Commander in Chief, the power to ignore any law enacted by Congress which he decides impinges on his authority as C.inC.

In this regard, a quotation from the 69th of the Federalist Papers is worth citing,
particularly as it was written by Alexander Hamilton (champion of a strong
executive) and because it pertains to the President as Commander in Chief.

"The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, -all which, by the Constitution under consideration, would appertain to the legislature."

Clearly a "first General and first Admiral" would have the same powers as that of any commanding general or commanding admiral, except that the scope of his or her authority would cover the entire army and navy. Like any other general or admiral, his or her authority would be subject to the constitutional powers of Congress to declare war and regulate the armed forces.

Obviously, Mukasey is unfamiliar with the Federalist Papers.

Any individual who supports the claims of near-unlimited powers of the President is unqualified to be the Attorney General of the nation.

It is hard to believe that any Senator, be he or she a Democrat, Republican or Independent, would be a willing participant in confirming the nomination of Michael B. Mukasey to be the next Attorney General of the nation. Are our Senators so fearful, insensitive and/or servile, that they are unable or unwilling to recognize the constitutional implications of voting to affirm Mukasey?

It is unfortunate that so much time was devoted to his views on "torture" and water boarding, and that not more time was devoted to exploring, in depth, Mukasey's views on the separation of powers as between the three branches of government, on Congress as the first among equal branches of the government, on Congress as the only maker of laws (whether in war or in peace), on the critical role of Congress in exercising effective oversight over the Executive Branch to ensure that the laws enacted are faithfully executed, and on the primary function of the Executive to "...take Care that the Laws be faithfully executed..."
Respectfully,
Anthony F. de la Pena, Esq.

P.O. Box 304
Thetford, Vermont 05074
802-785-4992

Posted by Anthony F. de la Pe–a | October 26, 2007 12:42 PM

Mukasey is a dedicated zionist and so is his wife.
I don't want an A.G. with any ambivalence as to which government gets his full attention and loyalty, i.e. the U.S.A. NOT Israel !

Posted by dreevesx | October 26, 2007 3:32 PM