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?"