How Michael Mukasey's squishiness on water-boarding became laudable intellectual independence.

The law, lawyers, and the court.
Nov. 6 2007 6:48 PM

Independence Day

How Michael Mukasey's squishiness on water-boarding became laudable intellectual independence.

The word independence is tossed around a good bit at this morning's Senate judiciary committee vote to approve Michael B. Mukasey as the next attorney general. Democrats and Republicans alike laud Mukasey's independence of mind. But Orin Hatch, R-Utah, manages to go further to claim that Mukasey's refusal to concede that water-boarding is torture is a hallmark of his independent thinking. In Hatch's twisted syllogism, Senate Democrats who oppose Mukasey are in fact the ones "politicizing the Justice Department," by demanding that he adopt "politically correct" positions on the interrogation practice known as water-boarding. Worse, these Democrats are undermining Mukasey's "independence" by unreasonably demanding that he call it illegal. Democrats, he scolds, cannot "emphasize independence and then demand that Mukasey make only their legal judgments."

"Their" legal judgment—that water-boarding is illegal—is, of course, supported by the Geneva Conventions, the Convention Against Torture, the War Crimes Act, and the Detainee Treatment Act, as well as the JAG officers, a growing group of Justice Department lawyers, and centuries of American tradition. But in Hatch's mind, the legal status of water-boarding remains an open question. Hence, his outrage. How dare Senate Democrats attempt to compromise this nominee's "independence" by demanding that he concede that settled law is settled law?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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Finally it's clear: In the Age of George W. Bush, a truly independent attorney general is at his best when he is "independent" of the Rule of Law.

Of course, that's the sleight of hand this administration has perfected over seven years. There are no legal facts, no immutable rules, and no firm conclusions. Just opinions. And for Mukasey to opine on the legality of water-boarding would be to speculate on "hypotheticals," in his words, that lack the crucial "facts and circumstances" he needs to venture an informed opinion. Even Arlen Specter, R-Pa., states flatly today that Mukasey's claim that he had no opinion because he hadn't been read into the interrogation program is "flimsy."

It's this same lamentable "independence" from the constraint of statute, convention, legal precedent, and the Constitution that allowed John Yoo to open the settled question of torture in the first place. This type of legal open-mindedness also made the clear strictures of FISA or the Patriot Act suddenly ambiguous.

The committee votes 11-8 this morning to send Mukasey's nomination to the full Senate. The two Democrats who side with the Republicans—Sens. Dianne Feinstein, D-Calif., and Chuck Schumer, D-N.Y.—celebrate yet another aspect of the nominee's "independence." Unlike Alberto Gonzales, Mukasey does not "owe his legal career to the president," says Feinstein. "They are really two different people. Mukasey has really followed an independent path." Schumer is similarly lyrical on the subject of Mukasey's alleged independence, saying the nominee really reminds him of former Deputy Attorney General James Comey, who "disagreed with us on many issues but displayed an admirable, unique independence."

Isn't it ironic that Democrats bend over backward to canonize James Comey, Jack Goldsmith, and now Daniel Levin as The Men Who Said No to the President, while voting to confirm a man who determinedly tells the president, "Maybe"? Maybe we like our heroes to be brave only after the laws have been broken. In the interim we want them to keep an open mind.

What Levin, Goldsmith, and Comey did—what made them so "independent"—was not to change decades of settled law into unsettled law. That's not independence; it's lawlessness. What they did is what Mukasey pointedly refuses to do: draw a line around a certain class of conduct and deem it off-limits. Confronted with undeniable evidence of the suffering that water-boarding causes, and the many laws it violates, Mukasey declined to say "never."

That's why Feinstein's supposedly elegant solution—hey, let's pass legislation that makes that illegal water-boarding really, really illegal—seems so naive at this late date. Is she hoping that this time the president will be persuaded that we really, really mean it?

Schumer is equally amusing in recycling the Bush administration mantra of "trust me." You see, Schumer sat down face to face with Mukasey, and the nominee promised him that if Congress passed legislation making water-boarding really illegal, Mukasey would ensure that the law was not violated. Like a battered wife, Schumer gasps—gratefully—that "from a Bush nominee, that's no small concession."

But by far the funniest part of the day comes with Feinstein's and Schumer's explanations that they are voting for Mukasey today because President Bush is threatening them with someone far worse, or with no one at all. Feinstein says she believes the president when he threatens not to send another nominee up to the Hill if Mukasey is voted down. "I don't believe a leaderless department is in the best interest of the American people, or the department itself," Feinstein frets.

And here I thought we don't negotiate with terrorists.

What Schumer and Feinstein somehow miss today, with all of their apparent pragmatism, is that the same president who has liberated himself from the strictures of the Rule of Law, liberated the DoJ from the customs, norms, and practices that allowed it to function. To suggest, as do these two Democrats, that they will let the water-boarding slide in the interest of getting the DoJ fixed up is to forget that both wrongs are of a piece. Schumer and Feinstein vote for Mukasey because they somehow believe he can fix the Justice Department without telling the president "no." As Sen. Sheldon Whitehouse, D-R.I., says in the last statement of the morning, the opposite is true: The sacrifice of the DoJ would be painful. But it's a small price to pay in pursuit of a desperately needed "moment of clarity" about the need to tell this president "no."

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