by Kagro XOne by one, Senators are coming out to express their reservations about the nomination of Michael Mukasey for Attorney General. From John McCain and Lindsey Graham (both of whom, to be frank, everyone should expect to roll over in the end), to John Kerry, to Bernie Sanders, Senators have expressed puzzlement and astonishment at Mukasey's inability to take a clear position on whether or not waterboarding is torture.
Still worse, if that's possible, is the fact that Mukasey remains unwilling to say definitively whether or not the President of the United States is bound by statutory law of any kind.
In a NYT op-ed published last week, Prof. Jeb Rubenfeld of Yale Law School identified an answer given by Mukasey that should prove far more troubling than the horrifying but considerably narrower answer he gave to the torture question:
AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”
According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”
If he is not, we no longer live under the government the founders established.
And thankfully, the op-ed caught the eye of Sen. Chris Dodd, who today announced his opposition to Mukasey's nomination based specifically on this point.
Which, since it's a point I've been making about this "administration" for going on two years now, brings me back to the position I took just a few days ago: Nobody for Attorney General.
What Mukasey has expressed here is really a basic tenet of the Bush "administration’s" view of constitutional law. Mukasey himself has expressed nothing here that puts him at odds with the policy-making elements of the "administration" with respect to executive powers, and that's something Senators need to recognize if they're going to approach this nomination, or indeed any dealings with the Bush White House at all, in any rational fashion. Ask yourselves who could convince you – and how would they do it? – that they were serious about safeguarding the basic tenets of the Constitution and its separation of powers, and at the same time keep faith with this "administration?" Any president -- and I mean any president -- ought to be able to depend on a certain amount of deference from his or her Attorney General, of course. This ordinarily goes without saying, but in this case must be said because it sets up an irreconcilable paradox. Is it even possible to serve an administration that regularly asserts constitutional interpretations like the one Judge Mukasey did and protect the fundamental rule of law which underlies our entire constitutional system of government? How could it be so?
Who could do that? Could anyone?
If not -- and I assert that it is simply not possible to do -- should Senators be operating under normal circumstances? That is, should they be proceeding with the nomination as if this president -- who has himself created this irreconcilable paradox -- were in fact entitled to this or indeed any nominee?
An "administration" that sends distinguished federal judges to Capitol Hill and puts them in a position requiring them to hedge on answers to such basic questions as must a president obey federal statutes is operating so far outside the bounds of normalcy already, that it hardly seems worth anyone's time to pretend that an Attorney General is necessary to the functioning of the government at all.
Indeed, the confirmation of an Attorney General at this point does the country a considerable disservice, by glossing over the fact that the "administration" is operating in a manner that would actually require this kind of evasion from someone who supposedly aspires to the nation's top law enforcement position.
This is a process that should come to a full stop, so that Senators may pause and take a good look around at what's happened, and what they're being asked to facilitate, in the name of "business as usual."