The Senate runs into the arms of Michael Mukasey.

The Senate runs into the arms of Michael Mukasey.

The Senate runs into the arms of Michael Mukasey.

The law, lawyers, and the court.
Oct. 17 2007 7:01 PM

Rebound Relationship

The Senate runs into the arms of Michael Mukasey.

Michael Mukasey. Click image to expand.
Michael Mukasey

Senate hearings are at their worst, perhaps, when the senators have agreed in advance on a cheery outcome, and they're willing to accept the reality as defined by the guy in the witness chair to get it. Today, we have senators falling over themselves not only to signal their respect for Michael Mukasey, the president's pick for attorney general, but also to thank him for deigning to take the job. Pretty much all they need to make sure of today is that Mukasey is not Alberto Gonzales. Check. Vote to confirm.

Emily Bazelon Emily Bazelon

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

Mukasey disarms the Democrats from the start by offering concessions they have been waiting for lo these long seven years. In his opening statement, he says, "Protecting civil liberties, and people's confidence that they are protected, is part of protecting national security." This is either a platitude or a repudiation of the administration's entire hawkish outlook. In an effort to push Mukasey further down the latter path, Sen. Patrick Leahy, D-Vt., asks him about "the so-called Bybee memo"—the 2002 opinion from the Office of Legal Counsel that approved a whole range of coercive tactics, such as waterboarding, by insisting that torture isn't torture unless it causes physical damage amounting to "death, organ failure or the permanent impairment of a bodily function." What does Mukasey think about this defining-down of torture? "The Bybee memo was worse than a sin, it was a mistake," the nominee says. "It was unnecessary."

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Leahy likes this answer. He asks if Mukasey repudiates the memo as contrary to law and also to "the values this country stands for." Mukasey replies, "I do." Ringbearer, please.

But the Mukasey-Senate love match doesn't go all that deep. Leahy next asks about the secret February 2005 memos signed by Gonzales, which re-loosened the reins on interrogators. (According to the New York Times, which broke the story, the memo approved tactics including head-slapping, freezing temperatures, and waterboarding again.) Unlike the Bybee memo, the 2005 opinions are still law. And here Mukaskey won't say he's planning to change that. "I'm certainly going to examine the underlying memos and the underlying facts," he answers. "But I have not been read in—I think that's the Washington expression—to any of the classified information" relating to interrogation.

This is a punt. It is also exactly the right move for him, because the senators can't do anything about it. Many such moments follow. Sen. Arlen Specter, R-Pa., asks Mukasey about the right to habeas corpus, to go in front of a judge if you're being detained indefinitely. Does Mukasey think the Guantanamo detainees have a constitutional right to their day in court, even though Congress limited their habeas rights last year?

Mukasey isn't going down that road, either. "That question is squarely before the court in Boumediene," he says, referring to the Supreme Court's upcoming Guantanamo case this term.

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"You're punting now," Specter chides.

"That's right," Mukasey says. The Justice Department has filed briefs in Boumediene, he continues, and he thinks that's reason for him not to answer.

"I filed a brief, too. That doesn't mean anything," Specter retorts. He knows he's supposed to make nice, but apparently he can't quite help himself. Nor should he—there is no reason Mukasey can't answer this question. He's not a Supreme Court nominee who'd be tipping his hand about how he'd rule in a future case. The Justice Department he's about to head up is fighting Boumediene's efforts to get into court as hard as it can. If Mukasey disagreed with that stance, he'd never have been tapped for this job. So why can't he announce the legal argument his soon-to-be lawyers are making?

He can't, because he doesn't have to. The senators are in Gonzales recovery and they will go for anything just short of lying, forgetting, and stonewalling. Sen. Russ Feingold, D-Wisc., asks some of the day's best questions. But then comes the smooch: "I don't agree with everything you say, but I will certainly say that this is a much more responsive nominee than the previous witness." Everything is relative: Mukasey speaks in the ringing yet calm tones of the supremely confident trial judge he was until his recent retirement. He doesn't say black is white. And so he's gold. It doesn't matter that the senators have gained few, if any, concrete assurances about indefinite detention, warrantless surveillance, or torture, in the usual meaning of the word.

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What the senators get in exchange for their deference is the nominee's reassurance that Vice President Dick Cheney and his counsel, David Addington, are no longer going to run the Justice Department while the attorney general sits by. You can feel the institutional sigh of relief as Mukasey makes clear that he's not planning constant end runs around them in the name of expanding the president's authority. Dianne Feinstein, D-Calif., asks about Congress' constitutional powers regarding military actions, and Mukasey says, "Congress has to provide the tools to the president. Where the provision of tools begins and the president's powers leave off is not something I ever want to see definitively settled because of a conflict between the two branches." Later, he adds, "Each branch has understood that push can't come to shove with regard to certain issues."

In other words, Mukasey doesn't live solely to make Congress irrelevant. Compared with Cheney and Addington, he's got a lesser appetite for executive power for the sake of power. "Unilateralism across the board is a bad idea," he tells Charles Schumer, D-N.Y. He promises that if DoJ and the president try to establish a separate national security court for the Guantanamo detainees—one that would not be subject to the same constitutional constraints as the federal courts—they'll go to Congress for approval first. The senators will be read in.

Of course, as Mukasey flatly states, he'd have no choice in the matter: Only Congress has the power to establish new courts. So how meaningful are his ringing truths? What will change because Mukasey has said, calm and clear, "It is unlawful to subject detainees to cruel, inhumane, and degrading treatment?" What's the significance of his saying of Jack Goldsmith's recent book, which strongly criticizes the Gonzales DoJ, "It was superb. I couldn't put it down," or of agreeing that James Comey, the former deputy attorney general, stands for "legal and ethical excellence?"

All of this certainly isn't nothing. It is different from what Gonzales came to represent. Mukasey is putting as much distance as possible between himself and the worst excesses of Gonzales' shell of a department. Attorney General Mukasey will be the boss, not a "potted plant," as Schumer puts it, with relish. The question is how much the new AG will be a boss who agrees with much of what the president wants to do in the time remaining to him. Clues come from Sen. Richard Durbin, D-Ill., who spices up the proceedings when he quotes Mukasey's utterances during an early meeting between the two of them. "You said, 'there's a whole lot of room between pretty please and torture,' " Durbin says. And "you said there could be a point where the president" has the authority to override a statute. And "you said, about Guantanamo, 'they get three hots and a cot there, and better health care than many Americans.' "

Mukasey doesn't look pleased to be reminded of any of those lines. He has since mastered more soothing ones. But if you read what he's written, and look at his record, he sounds like the same self who had Durbin rightly worried. For once, I'm with the women in the pink crowns and T-shirts, the ones who yell out at the end of the morning session, "Bush lies. We torture." It's the reality outside the room that's been missing from the outset. It deserves to come in.