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Attorney General ChessIf Mukasey is knocked out, which party loses?

By Emily BazelonPosted Wednesday, Oct. 31, 2007, at 12:44 PM ET

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Emily Bazelon covered Mukasey's previous Senate hearings. When Bush first announced the Mukasey nomination, Bazelon wondered if he'd be strong enough to restrict the power of the executive branch. Frank Bowman urged Congress not to confirm Mukasey, because he also doubted the would-be AG's ability to limit executive power. Bruce Fein agreed, cautioning that he would be "a reliable echo of the monarchlike theory of government celebrated by Mr. Bush and Vice President Dick Cheney."

But if Congress starts banning specific techniques, won't that suggest anything it doesn't list is OK? A bigger problem than the statutory gaps is the DoJ exploitation of those holes to turn the anti-torture laws into Swiss cheese. Whatever its shortcomings, Congress did bar tactics intended to inflict "severe physical suffering." How could that not cover waterboarding, which has been used to cause pain, anguish, and panic for centuries, as Dahlia Lithwick and Phil Carter point out in this prescient piece? Again, Marty Lederman has this figured out: The DoJ declared in a still-binding 2004 memo that to be torture, severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." Waterboarding is brief, ergo it's not torture. This analysis has nothing to do with the words Congress put in the statute, but that doesn't seem to bother the government lawyers who came up with it.

One more lawyerly Mukasey move: He promotes the interpretation that an interrogation tactic is cruel, inhuman, and degrading—and therefore barred by statute—only if it "shocks the conscience," as the Supreme Court has defined that term. This is a crutch the government has loved to lean on. In the court's words, which Mukasey dutifully quotes, the standard "demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking" (his italics). Which brings us back to where we started: It's all about context and nuance. Waterboarding might be bad news most of the time. But Mukasey can't or won't say that's the case in advance or in general. If the Senate confirms him, it will tell the world that the American attorney general hasn't made up his mind about a form of torture that's been reviled for centuries and consistently prosecuted in American courts.

There's more to mine in Mukasey's answers, which in their long version run over 172 pages. Senators who have railed against the administration's efforts to turn the executive into the ever more dominant branch should continue to worry about his stance on the president's power to order surveillance. But it's Mukasey's legalistic hedges about waterboarding that are easiest to rally around, and that should distress Republicans like McCain and Arlen Specter just as much as Democrats.

We'll find out soon enough. Moments of truth by definition don't last long, and the Senate judiciary committee this morning scheduled a debate and vote on Mukasey for Nov. 6. If the administration is taking a gamble on the outcome, it has also neatly lowered the stakes. The acting attorney general, Peter Keisler, is a founder of the Federalist Society and a dreamboat for movement conservatives. If Mukasey goes down, Keisler stays in. Do the Democrats want him to decide which allegations of election-law violations to prosecute in 2008? There's another ramification, too: Keisler is up for a seat on the U.S. Court of Appeals for the D.C. Circuit, and it could be easier for him to win confirmation from the helm of the DoJ. The administration has set up the vote on Mukasey to look a lot like this: Heads, we win; tails, you lose.