Virtually every Democrat on the Senate judiciary committee opens his or her questions to Attorney General Michael Mukasey at today's oversight hearing with a thank you. They thank him for appointing an outside prosecutor to investigate the destruction of the CIA torture tapes; they thank him for re-establishing appropriate boundaries between the White House and the Justice Department. They thank him for putting an end to disparate treatment of gay employees at DoJ, and for, er, reassigning the dread U.S. attorney for Minnesota, and for his work to depoliticize the Justice Department. All of these thanks join together to form a sort of mimed Hallelujah Chorus in which all can agree that any day Alberto Gonzales isn't the attorney general is a good day in America.
Where Gonzales tended toward weaselly whininess, Mukasey is inclined toward curt directness. In response to an elaborate three-part question from Sen. Chuck Grassley, R-Iowa, toward the very end of a very long day, Mukasey responds, "It is, we are, and I do." Where Gonzales invariably blamed some faceless "senior leadership of the department," Mukasey is willing to shoulder sole responsibility for his decisions.
The problem is that 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.
As you'll recall, last October, nominee Mukasey promised the Senate that while he couldn't yet offer an opinion on the legality of the alternative interrogation technique called water-boarding, he'd be able to do so once he was "read into the program." As you may also recall, that nonanswer came close to scuttling his nomination. Last night, Gen. Mukasey let the Senate know in a sort of constitutional Dear John letter that he wouldn't opine on water-boarding today either, both because we stopped doing it and because it's "not an easy question."
In other words, having set about diligently to scrutinize the legality of the interrogation program, its legal justifications, and its applications, the nation's top lawyer has come up with this lawyerly answer: It depends.
Over the course of a long, maddening day, it's quickly manifest that Mukasey's legal opinions have a 30-second shelf life. He won't opine on what's happened in the past and he won't opine on anything that might happen in the future. When Sen. Arlen Specter—concerned about seven years of vast new claims of executive authority—asks Mukasey whether, in his view, the president "can break any law he pleases because he's the president—including, say, statutes banning torture," as well as FISA and the National Security Act, Mukasey replies, "I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids."
"Well, he did just that when he violated the Foreign Intelligence Surveillance Act," Specter shoots back. Mukasey's response? "Both of those issues have been brought within statutes."
Specter is flabbergasted: "But he acted in violation of statutes, didn't he?"
"I don't know," Mukasey replies. But does it really matter? What's past is past.
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."
Russ Feingold, D-Wisc., pounds away at Mukasey's claim that he can't define water-boarding as torture without "tipping off our enemies about how we apply our laws." If that's so, wonders Feingold, "How could you ever prosecute such acts as crimes?" Mukasey replies that a subcontractor was once prosecuted for abusing a detainee. See? Problem solved.
Dick Durbin, D-Ill., gets off the best line of the day when—citing Mukasey's statement that "reasonable people can disagree" about the legality of water-boarding—he asks the attorney general to name some on the pro side.
And Sheldon Whitehouse, D-R.I., tries to get Mukasey to explain why the Justice Department is investigating the destruction of the CIA torture tapes, but not investigating the underlying torture itself.
Mukasey's reply, "I don't start investigations out of curiosity," speaks for itself. When Whitehouse tries to get Mukasey to agree that they both know enough classified information to have a very concrete, nonspeculative legal discussion about whether what happened on those tapes is legal, Mukasey again insists that whether or not what happened on those tapes is legal is about which "certifications were given" and "who permissibly relied on it." Whitehouse calls this the "Nuremberg defense. ... I had authorization and therefore I'm immune from prosecution."
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.