The Senate should not confirm Michael Mukasey as the next attorney general. I am surprised to find myself writing this. I was initially pleased by his nomination. By all accounts, Judge Mukasey is honest, thoughtful, tough-minded, and independent—qualities his disgraceful predecessor notoriously lacked. If confirmed, Mukasey would probably reinvigorate the Justice Department's depleted and demoralized upper management and make a start on the long job of restoring the department's reputation for integrity and professionalism.
Sadly, that's not enough. The problem is not Mukasey's intellect, competence, or personal probity. It's that—as became clear on the second day of his Senate testimony—he is wrong about the fundamental moral question of whether reasons of state can justify or excuse the official embrace of torture. And he is even more wrong—dangerously, subversively wrong—about the place of the president in American constitutional government. If the senators on the judiciary committee really listened to what Mukasey said, and listened as senators and citizens rather than as nervous party politicians, they would reject his nomination on constitutional principle and as a matter of institutional self-defense.
First, Mukasey's weaseling on water-boarding was unworthy of him. Perhaps feeling pressure from his White House sponsors, he cast himself last week as little more than Torture Boy in long pants. His refusal to call water-boarding torture delighted the White House. His suggestion that he really wasn't familiar with the particulars of the technique was laughable. By now, no literate American adult is unfamiliar with this charming form of interrogation by near-drowning, which makes the claim even more absurd coming from a retired New York federal judge whose main claim to fame is presiding over difficult terrorism trials. Mukasey's response that "if water-boarding is torture, torture is not constitutional" was a transparent evasion. And the entire exchange throws a more sinister light on his borrowed quip that the infamous Gonzales-sponsored torture memo "was worse than a sin, it was a mistake. It was unnecessary." One now fears that Mukasey doesn't so much disagree with the substance of that memo, as he thinks that writing it down was a political error.
All other considerations aside, any person who cannot say, plainly and unambiguously, that water-boarding is torture and is both immoral and illegal should not be the attorney general of the United States. Period.
Judge Mukasey's views on presidential power are also disqualifying. When asked about the secret surveillance program authorized by President Bush in plain violation of the Foreign Intelligence Surveillance Act, he responded that the Constitution authorizes the president to ignore or disobey statutory law when he thinks it necessary "to defend the country." When Patrick Leahy, D-Vt., asked whether the president could authorize illegal conduct his response was this lawyerly formulation:
The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.
This expansive view of presidential war powers is nowhere to be found in the text of the Constitution, which provides only that the president "shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into service of the United States." It also requires an almost willful misconstruction of Supreme Court precedent. While the boundaries between presidential and congressional authority in wartime are sometimes ambiguous, two points are plain. First, the court is tolerant of presidential assertions of extraordinary war powers in cases of genuine emergency where there is no time to seek congressional authorization. Second, in the language of the famous Youngstown case, when a president acts against the express will of Congress, "his power is at its lowest ebb" and the court can uphold the president "only by disabling the Congress from acting on the subject."
In enacting FISA, Congress passed and the president signed a statute striking a considered balance between national security and personal liberty. There is no plausible reading of the Constitution that allows a later president to authorize a secret, ongoing, systematic violation of that statute merely because he disagrees with the balance it struck or believes circumstances have changed.
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