Suddenly, Mum's Mukasey's Word

On Wednesday Michael Mukasey said all the right things to the Senate Judiciary Committee. Yesterday he didn't say nearly enough. Some senators are understandably frustrated, but the fact remains: If he is confirmed as attorney general, Mukasey will -- by his mere presence -- singlehandedly improve the professionalism and independence of the Justice Department.

If the committee had taken a voice vote Wednesday, Mukasey would have been confirmed unanimously. Yesterday's testimony shows that is no longer a possibility, as Mukasey repeatedly frustrated committee Democrats with evasive answers to pressing questions.

Did White House counselors caution him against appearing too moderate or conciliatory toward Democrats? Did committee members simply ask more pointed questions? Did Mukasey drink from the Cup of Addington? Your guess is as good as mine.

Here is one such disappointing exchange, as chronicled in the New York Times:

"Is waterboarding constitutional?" [Mukasey] was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today's sharpest exchanges. "I don't know what is involved in the technique," Mr. Mukasey replied. "If waterboarding is torture, torture is not constitutional."

Mr. Whitehouse described Mr. Mukasey's response as a "massive hedge" since Mr. Mukasey refused to be drawn into a conversation over whether waterboarding, which has been used by the Central Intelligence Agency to question terrorist suspects, amounted to torture.

"It either is or it isn't," the senator continued. "Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?"

Mr. Mukasey repeated his answer: "If it amounts to torture, it is not constitutional." Mr. Whitehouse said he was "very disappointed in that answer -- I think it is purely semantic."

"I'm sorry," Mr. Mukasey replied.

Sorry, indeed. Mukasey should have been more forthcoming about waterboarding than he was. Either he thinks it is torture or he doesn't -- anyone could come to a conclusion based upon Whitehouse's definition. And the last thing we need from the Justice Department is more obfuscation and semantics.

But the fact is that as much as anyone would love to transform Mukasey into the second coming of Elliot Richardson, he is in the end a conservative jurist who isn't always (or even frequently) going to agree with, say, Sen. Patrick Leahy (D-Vt.). He is, after all, President Bush's nominee.

So don't panic. Remember, it could be -- it was -- so much worse.

By Andrew Cohen |  October 19, 2007; 7:45 AM ET
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I don't think you need to be a flaming liberal to think waterboarding constitutes torture, or that Congress has a right to limit executive power - especially in such a murky conflict as the "war on terror". If all you want is someone better than Gonzales, then you're very likely to get what you want. Given how much is at stake, I think you're setting the bar WAY too low.

Posted by: JB | October 19, 2007 09:19 AM

Between what I heard yesterday and the transcript, I am very disappointed and I do not see any good purpose in approving an AG who is unclear about waterboarding as torture and very clear that the Prez has inherent and apparently unbounded power.

Only his commitment to a professional Justice Dept. recommends him. That is not enough.

Posted by: mark_in_austin | October 19, 2007 10:02 AM

I never dreamed we'd still be arguing about rationalizing torture and parsing techniques years after Abu Gharaib (sp?). What horrible idiots run this country.

Why would a self-respecting person who loves the law be dodging questions about terror techniques? Either he's pro-waterboarding, or he's already bowing to White house pressure (or somewhere in between).
He's not anyone I'd choose to run my Justice Department. We need someone unequivocal about not using even borderline torture techniques in that position.
When do we get to start prosecuting torture-enablers for war crimes?

Posted by: MR | October 19, 2007 10:05 AM

Why are The Judiciary Committee -- and you -- prepared to set the bar so low for the confirmation of the man who is supposed to be The People's Lawyer? Simply saying he'd be an improvement over AG Gonzales is to say absolutely nothing of substance. Mukasey's waffling on such a well-publicized technique as waterboarding suggests that, despite his demeanor, he willo end up as merely another water-carrier for a legally-challenged administration.

Posted by: william fisher | October 19, 2007 10:28 AM

I think that the definition of torture, while subjective, is easily determined by a simple test. If we would consider it torture if done to an American, then it is torure when done by or for Americans.
The best way to get a straight answer from administration officials is to subject them to these questionable methods.

Posted by: DemoChristian | October 19, 2007 10:47 AM

If the United States has been prosecuting waterboarding as torture since the Spanish-American war, it begs the question: why is is all of a sudden not torture?

Answer: The only people who think it is not torture are occupants of the White House and a law professor at Pepperdine.

If Mukasey can't commit to even that, then he doesn't deserve confirmation. Isn't he supposed to be the guy who will finally take out the trash at DOJ? I'm not encouraged.

Posted by: Nellie | October 19, 2007 10:53 AM

From Plutarch's life of Pompey the Great: "In their present evils, most Romans were ready to find some comfort in the mere exchange of one tyrant for another, for the city was brought to such a pass by oppression and calamities that, being utterly in despair of liberty, men were only anxious for the mildest and most tolerable bondage." Pathetic that we've been reduced to accepting Mukasey--who, on Day Two, demonstrated clearly that he WILL bow to political pressure--because he's smarter and has a nicer demeanor than Gonzales.

Posted by: Christopher Johnson | October 19, 2007 11:00 AM

So the bar that's been set is he's not Fredo shouldn't we be looking for someone with slightly better credentials than that.

Posted by: Dov | October 19, 2007 11:05 AM

More important than whether waterboarding is torture (I think it probably is) is Mukasey's contention that the President can ignore the law in the interest of national security. We are moving toward the day when a president can declare a political opponent a threat and have him detained indefinitely without charges. Osama is smiling at what he has wrought. Where's the outrage?

Charley Mitchell

Posted by: Charley Mitchell | October 19, 2007 11:24 AM

I keep on being reminded of that old Vietnam adage, "To save the village we had to destroy it." To defend our democracy and our freedoms, our superior way-of-life, we intentionally and systematically violated many of our most basic human principals. We are now hypocrites when it comes to talking about freedom, human rights, and human dignity. Hopefully, down the road, the damage will be undone. We need to elect and have people appointed that know you MUST be GOOD to win. Right now those in control believe you cannot win if you do what is right, they believe we cannot win if you behave in a civilized fashion. They believe they can cut corners, act in what they see is "brutal efficiency", then in this way we all become evildoers doing horrible things tainted with excuses and lies. The time is now to dig deep down and find the moral and ethical courage & conviction to make a stand and say NO to deviant behavior like torture and a host of other despicable policies & things foisted on us.

Posted by: whoo_whoo | October 19, 2007 01:01 PM

Charlie:

You are, of course, correct. I used the waterboarding as an example of Mukasey doing the Washington Two-step and dancing around the issue.

The most frightening thing about the Unitary Executive theory is that in practice, it leads to absolute tyranny. Consider this:

The President, without an authorization of force from Congress -- because he's the commander -- attacks a sovereign nation, then declares a perpetual state of war. He then seizes unlimited power as commander in chief during wartime, disbands the courts and Congress, then cancels elections, because it is necessary to have continuity in a time of war.

Sound far-fetched? Well, the Bushies have already taken the first three steps, albeit with a complicit Congress. Cheney's office has declared that the President doesn't need Congress's authorization to attack Iran, because the AMF to go after Bin Laden allows him to use whatever means necessary to go after the terrorists. Declare Iran a terrorist state, and viola, call the Marines!

Posted by: Nellie | October 19, 2007 03:05 PM

Mark, would you approve of somebody who blantantly hijacks a thread shortly after being among the leaders of a cabal formed ostensibly to stop hijackers?

Posted by: FeministNick | October 19, 2007 03:17 PM

As we discuss whether waterboarding is or is not torture let us remember whatever we do to captured terrorists they are treated a whole lot better then the way they treat captured Americans. And I believe the Daniel Pearl and Nick Berg videos proves that. So just remember as we beat
ourselves up over how terrible we are if we allowed waterboarding... any American who falls into the hands of al Queda is the luckiest person alive if he is ONLY WATERBOARDED...

Posted by: RSS | October 19, 2007 03:37 PM

My 10:02A was NOT a hijack, FemaleNick!

[Oh, you got me - we lawyers change the subject when we have nuthin']

Posted by: mark_in_austin | October 19, 2007 03:51 PM

The question the Democrats should have asked Mukasey: Do you agree that other nations who catch American agents fomenting regime change should feel free to subject them to waterboarding?
It is this prospect that led American military leaders to insist that our laws must forbid torture. If Mukasey waffles on waterboarding, he lacks the moral courage to be Attorney General. It is very disappointing, but the lawless amorality of Bush and Cheney seems to infect nearly everyone they touch.

Posted by: Glenn Becker | October 19, 2007 04:40 PM

I'm with Nellie. The shift in Mukasey's testimony from Day 1 of the confirmation hearing to Day 2 reminded me of the old saying 'the large print giveth and the small print taketh away.' Judge Mukasey must have been taken to the woodshed by David Addington after the first day's testimony. His tap dancing around the waterboarding question demonstrates beyond cavil that he is simply another 'loyal Bushie', to use a term regrettably familiar to followers of the Gonzales saga. In any case, Nellie seems to me to be clearly correct about the real potential for simply tyranny under the BushCheney Unitary Executive theory. If leads ultimately, I think, to a neofascism. If that is too distateful an idea to contemplate, then substitute neoNixonism. Consider the parallels between Nixon's conception of executive power and BushCheney's demonstrated by Nixon's famous interview by David Frost in May, 1977.

FROST: So what in a sense, you're saying is that there are certain situations . . . where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South--

FROST: But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense--is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every tittle, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

QUAERE whether Judge Mukasey doesn't embrace Nixon's theory entirely. Andrew Cohen, why in the world would you want this guy confirmed?

Posted by: P. Bosley Slogthrop | October 20, 2007 08:38 AM

Whitehouse should have asked Mukasey who defines what torture is, the president? The CIA? The Attorney General?

Posted by: hesthe | October 20, 2007 08:00 PM

Say, did anybody see this article of last Monday, Oct. 15 about what a terrific job Acting AG Peter Keisler is doing at DOJ?

Bush taps Keisler to fill in as AG

http://news.yahoo.com/s/ap/20071015/ap_on_go_ca_st_pe/accidental_attorney_general

And didn't SOMEBODY say that here first? Some time ago? (smile)

Psst: Little known secret: The Civil Div. of DOJ HAS GOT THE BETTER LAWYERS-THERE IS NOBODY RUNNING THE CRIMINAL SIDE OF THE HOUSE-ALICE FISHER IS A BODY THERE IN NAME ONLY-BRAINDEAD-SHE HAS NO MORE BUSINESS BEING IN DOJ, MUCH LESS RUNNING THE CRIMINAL SIDE, THAN A CHIMPANZEE WOULD!

Posted by: | October 21, 2007 04:27 PM

In all honesty, I certainly can't trust an appointee that evades answering a question that involves legal thinking as well as moral attitude. Either you are principled or you are not. Is waterboarding torture? He comes down with a non-answer as if he had been asked hypothetically. "If" it is torture . . . blah, blah! Come on. Of course it is. Maybe the good man has not realized that as the Attorney General he will no longer be a judge. Tell us what is your opinion. Do not turn into a hypothesis something that is factual. And then there he comes with a merry-go-round regarding if the President has the power to act outside the law. I was not convinced at all by his trip around the bushes --maybe around the Bushes-- when he tried not to answer and succeeded. My opinion is a very low sound in the middle of the Sahara, but . . . I don't buy this guy Mr. Mukasey!

Posted by: Adian Rossa | October 22, 2007 06:34 AM

We seem to be living in the country Jonathon Swift described when he wrote about the Lilliputians.

Posted by: DM | October 22, 2007 11:58 AM

Mukasey's equivocation was enough to change my mind. I don't expect agreement on all points but a man who hedges about simulated drowning being torture is just another lying bastard we don't need

Posted by: Chris Fox | October 22, 2007 12:22 PM

Gonzales a/k/a torture boy, should never have been confirmed. His nomination was egregious enough that the dems should have done whatever to stonewall it. Mukasey's testimoney on Thursday gave me no real comfort that he will be any better as a replacement.

Posted by: Sara BB | October 22, 2007 01:56 PM

And still, the question needs to be asked: What would Mukasey do to prevent selective prosecutions? How would he assure the independence of front line prosecutors?

Posted by: nbahn | October 22, 2007 02:48 PM

Would he be better than a lying Little Al? Maybe. But we're talking about degrees here.

Is he someone you could RESPECT as an AG? Not likely, with those answers. It seems he's another American Fascist who all too easily will overlook the rule of law to a president who easily declares a "war" where there isn't one--against no country or nation that we can defeat.

Posted by: pacman | October 22, 2007 04:03 PM

I am in total agreement with the comments many have made suggesting that this is no time in life or politics for a candidate for Attorney General not to have a clear personal view on what constitutes torture, I was additionally flabbergasted by the following report:

"In the case of the eavesdropping program, Mr. Mukasey suggested that the president might have acted appropriately under his constitutional powers in ordering the surveillance without court approval even if federal law would appear to require a warrant.

"The president is not putting somebody above the law; the president is putting somebody within the law," said Mr. Mukasey, who seemed uncomfortable with the aggressive tone, occasionally stumbling in his responses. "The president doesn't stand above the law. But the law emphatically includes the Constitution."

........................................

That any Congress person of mine can countenance this jibberish with an approving vote, will be the last vote he or she gets from me.

Posted by: cklaer | October 22, 2007 04:25 PM

Now, now, people:
1. Mr. Mukasey is appearing before the Senate as the President's nominee.
2. The President prefers the murkiest possible definition of torture, taking advantage of the murkiness in the law.
3. Mr. Mukasey basically declines to answer publicly whether a particular activity is torture.

What did you expect? For him to declare that the CIA's waterboarders are breaking the law? Ain't gonna happen.

Posted by: Sacandaga | October 22, 2007 04:39 PM


No Convictions in Trial Against Muslim Charity

The decision today is "a stunning setback for the government, there's no other way of looking at it," said Matthew D. Orwig, a partner at Sonnenschein Nath & Rosenthal here who was, until recently, United States Attorney for the Eastern District of Texas.

"This is a message, a two-by-four in the middle of the forehead," Mr. Orwig said. "If this doesn't get their attention, they are just in complete denial," he said of Justice Department officials.

http://www.nytimes.com/2007/10/22/us/22cnd-holyland.html?_r=1&hp&oref=slogin


NOW who do you think is signing off on these so-called "terrorist" cases, huh? Why the brainless idiot, neither a prosecutor nor EVER a civil litigator she, (has never even tried ONE case) ALICE FISHER, PROTEGEE OF MICHAEL CHERTOFF, DRAFTER OF THE PATRIOT ACT.

Posted by: | October 22, 2007 05:57 PM

Is Mukasey just Gonzo Lite?

Anyone who had time to listen to the recent Michael Mukasey confirmation hearings for attorney general had to be left scratching their heads at many of his answers. He seems to be just another in a long line in recent years who seems to think that the presiding officer in the executive branch is homologous to a dictatorship -- or at the least a decidership since this presiding officer has already declared himself "the decider".

I submit that in many ways the presiding officer is simply a celebrated notary public there to sign into effect the laws of the nation as written and passed by Congress.

The President took and oath to preserve, protect and defend the Constitution, not disrespect and bend the Constitution. The Constitution says the President is the commander in chief of the military. How can anyone interpret that to be a green light to ignore any laws at his discrepancy. Only Congress can make laws, but even Congress cannot break laws.

It's time for the nation and it's representatives to remember that the legislative branch of government is in Article I of the Constitution and the founding fathers placed the executive branch in the back seat and second in line in Article II.

Article II, Section 3 says the President "shall take care that the laws be faithfully executed." There is no "except when at war" or except anything. It is very clear, the President "shall take care that the laws be faithfully executed." Are those that make the argument that the President can ignore laws during a war also of the opinion that the President could ignore laws at will during a war on drugs, a war on poverty, etc. Perhaps its just an honest misunderstanding and this President had a flashback to his days of governor of Texas and interpreted "that the laws be faithfully executed" to mean to kill them off.

By the way speaking of war powers, of course as we all know only Congress can declare war. Did I miss something or just when did Congress declare war?

Without an independent Department of Justice and Congressional oversight we as a nation are back to pre-revolutionary war government where the king makes laws, determines what is and is not law and executes those laws. Without an independent Department of Justice a government of the people, by the people and for the people cannot survive.

Without an independent attorney general there cannot be an independent Justice Department. It's time (past time) for an attorney general who sees his client as being the Constitution, the laws and the people of the nation -- he shouldn't somehow view the executive branch as being his premier or topmost client. Any attorney general who does that is no less than a traitor to our founding fathers, our Constitution and to every citizen of America and any attorney general who does that need only look at the recent past of the Department of Justice to see what his fate will be if Congress does their Constitutional duty of oversight.

Steve Everett
http://www.JustAThoughtThatsAll.com

Posted by: Steve Everett | October 23, 2007 12:34 AM

Is Mukasey just Gonzo Lite?

Anyone who had time to listen to the recent Michael Mukasey confirmation hearings for attorney general had to be left scratching their heads at many of his answers. He seems to be just another in a long line in recent years who seems to think that the presiding officer in the executive branch is homologous to a dictatorship -- or at the least a decidership since this presiding officer has already declared himself "the decider".

I submit that in many ways the presiding officer is simply a celebrated notary public there to sign into effect the laws of the nation as written and passed by Congress.

The President took and oath to preserve, protect and defend the Constitution, not disrespect and bend the Constitution. The Constitution says the President is the commander in chief of the military. How can anyone interpret that to be a green light to ignore any laws at his discrepancy. Only Congress can make laws, but even Congress cannot break laws.

It's time for the nation and it's representatives to remember that the legislative branch of government is in Article I of the Constitution and the founding fathers placed the executive branch in the back seat and second in line in Article II.

Article II, Section 3 says the President "shall take care that the laws be faithfully executed." There is no "except when at war" or except anything. It is very clear, the President "shall take care that the laws be faithfully executed." Are those that make the argument that the President can ignore laws during a war also of the opinion that the President could ignore laws at will during a war on drugs, a war on poverty, etc. Perhaps its just an honest misunderstanding and this President had a flashback to his days of governor of Texas and interpreted "that the laws be faithfully executed" to mean to kill them off.

By the way speaking of war powers, of course as we all know only Congress can declare war. Did I miss something or just when did Congress declare war?

Without an independent Department of Justice and Congressional oversight we as a nation are back to pre-revolutionary war government where the king makes laws, determines what is and is not law and executes those laws. Without an independent Department of Justice a government of the people, by the people and for the people cannot survive.

Without an independent attorney general there cannot be an independent Justice Department. It's time (past time) for an attorney general who sees his client as being the Constitution, the laws and the people of the nation -- he shouldn't somehow view the executive branch as being his premier or topmost client. Any attorney general who does that is no less than a traitor to our founding fathers, our Constitution and to every citizen of America and any attorney general who does that need only look at the recent past of the Department of Justice to see what his fate will be if Congress does their Constitutional duty of oversight.

Steve Everett
http://www.JustAThoughtThatsAll.com

Posted by: Steve Everett | October 23, 2007 12:36 AM

Once again the Democrats are fallng prey to a Bush loyalist and their judgment should be seriously questioned. They can no longer hide behind the statement: "If I knew then what I know now." Now is the time to reject this nomintion if we are to continue as a democraccy and not as a dictatorship. Stand up for the Constitution of the U.S. not the constitution of a mentally deficient president.

Posted by: anne kvestich | October 23, 2007 10:03 AM

If Mukasey refuses to give a clear answer to the question of whether waterboarding is torture, he should be waterboarded. Then he should be asked the same question again.

Posted by: Robert Yaes | October 26, 2007 09:37 AM

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