If Mukasey goes down, which party loses?

The law, lawyers, and the court.
Oct. 31 2007 12:44 PM

Attorney General Chess

If Mukasey is knocked out, which party loses?

Michael Mukasey. Click image to expand.
Michael Mukasey

Courtesy of Michael Mukasey, Washington woke up to a rare moment of truth this morning. The reckoning is all the more remarkable for being unexpected and unsought. When President Bush nominated Mukasey for attorney general, he offered conciliation by picking a retired judge with no national pull or partisan reputation. When the Senate got ready to hear Mukasey's testimony, Democrats practically jumped up and down in their enthusiasm to confirm him. And even after Mukasey riled the Senate by refusing to call waterboarding illegal and insisting on an expansive theory of executive powers, both sides still wanted to get to yes. As the mood soured this week, White House lawyers called Senate staffers to consult over what Mukasey could say to mollify the Democrats. The Washington Post suggested this face-saving route to confirmation.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Maybe some Democrats will yet find a way to make their peace with Mukasey, because this is still a fight they don't want to have. But he's sure not giving them much to work with, as Barack Obama, Hillary Clinton, John Edwards, and Joe Biden have each pointed out in announcing their opposition. Mukasey won't renounce waterboarding or declare it illegal, he said in a letter to the Senate released last night (here's the short version), because even though "as described" it's "repugnant to me," the whole discussion remains a "hypothetical," and "hypotheticals are different from real life."

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Of course, laws and rules are all about hypotheticals, in the sense that Mukasey is using the word. "Thou shalt not shoot your neighbor in the face" isn't contextual or nuanced. It's a statement of what nobody gets to do. Mukasey's refusal to put waterboarding in that category means that the Bush administration isn't ready to declare this form of torture clearly and finally off limits. If he's confirmed as attorney general, and finally reads all the memos he has diligently promised to review, it's possible that Mukasey will turn out to be the guy who changes all of that. But there's little or nothing in his record to suggest such a conversion, and a lot more that points to the opposite. Which is why the Democrats now have a real problem.

Here's the Mukasey dodge: He says he won't comment on coercive interrogation techniques or Department of Justice legal memos that he hasn't been briefed on. The key part of the DoJ analysis is already public; yet still, Mukasey has a three-part high-minded justification. 1) He "would not want any uninformed statement" of his to threaten field interrogators with "personal legal jeopardy." 2) He doesn't want to give terrorists "a window" into American interrogation operations. These rationales don't stand up well to scrutiny: According to the inestimable Marty Lederman on Balkinization, the threat of prosecution to interrogators who relied on DoJ opinions is vanishingly small (DoJ itself, after all, would have to prosecute). And we've told the terrorists plenty else about what we do and don't do. More to the point, really, is Mukasey's last justification: 3) If he renounces waterboarding, he could inch close to techniques "that some may find analogous or comparable" to it. Never mind that the government says it hasn't actually simulated the drowning of anyone since 2005. Maybe we're still doing something a lot like it. Or maybe in the future we'll come up with some brilliant new variation.

The smarter move Mukasey makes is to point out that while Congress has barred the military from using waterboarding in the anti-torture provisions John McCain wrote for the Detainee Treatment Act, lawmakers have failed to apply the same strictures to the CIA in passing the DTA and then the Military Commissions Act. As Mukasey writes, "Congress made the judgment that other agencies, particularly the CIA, should be able to employ interrogation techniques not specifically authorized in the Army Field Manual," which explicitly bars waterboarding and a bunch of other coercive tactics. This is his best argument. If Congress wants waterboarding to be categorically illegal, lawmakers can pass a statute making it so for everyone, rather than relying on a nominee seeking confirmation to tell them what they want to hear.