Nobody for Attorney General

by Kagro X

Michael Mukasey is certainly qualified to be Attorney General of the United States, if Alberto Gonzales sets any precedent. And while that may be the least convincing recommendation anyone can ever be given for the job, consider that Mukasey yesterday gave perhaps the least convincing answer to one of the most important questions asked of him -- by Sen. Sheldon Whitehouse (D-RI)-- in his confirmation hearing:

WHITEHOUSE: Is waterboarding constitutional?

MUKASEY: I don’t know what is involved in the technique. If waterboarding is torture, torture is not constitutional.

WHITEHOUSE: "If waterboarding is constitutional" is a massive hedge.

MUKASEY: No, I said, "If it's torture." I'm sorry. I said, "If it's torture."

WHITEHOUSE: "If it's torture." That's a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning. Is that constitutional?

MUKASEY: If it amounts to torture, it is not constitutional.

WHITEHOUSE: I'm very disappointed in that answer — I think it is purely semantic.

MUKASEY: I’m sorry.

And Whitehouse is right, of course. To say torture is not constitutional is -- or should be, in a sane world -- to say nothing at all. That is the response one might expect from a junior high school civics student, not a nominee for Attorney General.

But Mukasey, and his putative boss, George W. Bush, have a much bigger problem than being able to get away with massive hedges. The problem is that Bush's policies have made it impossible for any nominee for Attorney General who hopes to retain any amount of faith with this "administration" to answer these threshold questions with any amount of honesty.

It is simply bedrock truth that no one can answer the torture questions honestly without exposing the fact that the "administration" hinges its entire detainee policy on semantics.

It is similarly unfathomable -- or once was unfathomable in America -- that a nominee for Attorney General of the United States would ever have to say anything other than "no" to the question of "Is waterboarding constitutional?"

George W. Bush's detainee policies have, quite simply, rendered honest and conscientious service as an Attorney General impossible. One simply cannot serve both this president and the law faithfully. It is a paradox and an impossibility, because this president does not serve the law faithfully. And what it means, at bottom, is that George W. Bush's "administration" is an enemy of the rule of law, and has so diminished our capacity to live by it that no honest Senator should permit him the charade of attending to it with the window dressing of confirming an Attorney General.

Anyone who would hold that job in this "administration" will by definition be reduced to serving as a placeholder only -- a mere figurehead to whom everyone will, out of pure habit only, refer to as the "Attorney General," but who will at the end of the day be prevented from administering the law he will have sworn to uphold.

Comments

[phred]

I'm with you Kagro, we'd be better off with no AG than with one who is agnostic about torture. What are the odds this nomination could be stopped? Would a hold do the trick, or has everyone been too busy falling over themselves in describing his easy confirmation to put up a proper fight now?

[freepatriot]

what's the "alice in wonderland quote ???

"It would be, if it wasn't so, but it aint, so it is so"

Please excuse me

in all my studies of political science, references to a fictional fantasy childrens' story has never been necessary until now

I wasn't around when mccarthy was making our country a fucking joke

[MrX]

How about an answer like this?

I would not authorize waterboarding, although I know it has been a practice approved by others in this administration. I hope that if I assume the office of AG, that I can bring my opinions to the table, and influence those whose interpretations of the law regarding torture are looser than mine. I know these people well enough to believe that I will be listened to, although we disagree on some matters. I have experience enough with the law to know that it is not always clearcut how a law should be interpreted. But international law, the Geneva Convention, is reasonably clear that waterboarding is a form of torture.

That Mukasey has not attempted to stake out his own ground on this in a manner such as my previous paragraph is troubling. I agree with Whitehouse.

I believe, though, that if Mukasey is the best you can hope for from this administration, don't dump him if the next one on offer will be worse.

[hardheaded liberal]

The change in tone in Mukasey's answers from Wednesday to Thursday has proved that Mukasey has already abandoned the brave and emphatic statements about independence that he made on Wednesday.

The changes make clear that some of the "loyal Bushies" got hold of Mukasey after his testimony on Wednesday and explained to him that Dubya would have to withdraw his nomination if Mukasey really meant what he said about being independent in evaluating the conduct that the President and Vice-President wanted to have approved.

Leahy and the rest of the Senate Judiciary Committee should be urged to refuse to report his nomination out of Committee - Whitehouse and Feingold should put a "hold" on the nomination, if DiFi votes to report the nomination out, and Shumer should tender abject apologies to the Democratic caucus for overestimating the integrity of Mukasey.

DiFi, incidentally, had some tough questions for Mukasey on a clear case of "blaming the victim" in a civil case brought by a former female police officer against various defendants on the force who made her life miserable after she reported that she was raped by a male officer, and the male officer was not promptly fired and prosecuted. (Toleration of such sexual assaults against female officers is, unfortunately, not that uncommon, since I have been personally approached about representing the rape victims in such cases.) Mukasey apparently thought it was dandy for the police command staff to tolerate a little Peyton Place in the department and then treat sexual assaults as a male officer just getting too carried away in the process of adding to his conquests. The Second Circuit had to reverse him twice.

Mukasey's pusillanimous behavior in his testimony on Thursday completely disqualifies him from confirmation. The Senate Judiciary Committee should reject his nomination and Senator Leahy should meet with John Conyers, chair of the House Judiciary Committee, to let him know that the only thing Dubya and Cheney will understand is impeachment!

The only way to restore integrity to the Justice Department is to have President Pelosi (or some caretaker Republicsn appointed vice-president after Cheney resigns and just before Bush resigns - same sequence as when Agnew resigned, Nixon appointed Ford, then Nixon resigned) appoint the new Attorney General.

[cboldt]

I'd add that Congress is complicit in this game of rhetorical charades. It passed the Military Commissions Act, which effectively "legalized" waterboarding. At least took it out of the realm of being a war crime as torture or as cruel and inhuman treatment.

It doesn't matter who the nominee is. The conundrum sits there, waiting for any and all of them.

Leahy ought to be aware (hell, he is aware) of the relationship between Mukasey's answer and the substance of the interrogation practices law that Leahy watched pass through Congress a few months ago. False outrage, that's what it is.

[bmaz]

well, you know, I agree. I think. Here is the conundrum; no AG means we have Keisler as AG for 210 days and, to the best of my understanding, that 210 day period is reset if a nomination fails. I hope the last part is wrong. I have thought from the second they nominated Mukasey that the Administration didn't really care if he was confirmed or not because Keisler is perfect for what they want to accomplish in terms of keeping everything secret, remaining aggressively in bed with the telcos, and generally screwing the country and Constitution. In fact, I opined that there was a decent chance that the Administration itself would have the Mukasey nomination torpedoed if it really looked likely. Even if Mukasey is confirmed, they will simply keep him out of the loop and work around him on anything he won't underwrite. Their seed pods are already in place you know....

[Kagro X]

MrX, that's a fine answer. What it does, I think, is what I suspect is the only thing an honest answer can do, and that is expose the fact that the "administration" is run by people who are busy playing semantic games over some of the most basic questions in government, and indeed in western civilization.

That would be a satisfactory answer.

What I think can't possibly be done is to answer the question honestly and not make that clear.

[cboldt]

How about an answer like this:

Congress recently passed the Military Commissions Act, and under that act, unless a treatment results in permanent loss of lung function, waterboarding can not be prosecuted as a war crime. Not as torture and not as cruel and inhuman treatment. If Congress objects to the use of waterboarding for interrogation purposes, Congress can pass a law forbidding it.

[freepatriot]

did any of these stupid fuckers ever study the french revolution

fire up the fucking guillotine

we got a shitload of robespierres to deal with

[pinson]

It looks to me that Mukasey is in an untenable position. If he gives a definitive "yes" that waterboarding is torture, then he's implicitly agreeing that the administration engaged in criminal acts. And, anyone involved in sanctioning and carrying out these acts is culpable. Which, of course, means that Yoo, Gonazlez, Addington and the whole sorry crew would be on the hook. Mukasey would be on the record that it’s a crime. There’s pretty clear evidence that waterboarding has been happening – press accounts, anyway. So he’d be subject to political and public pressure to pursue it. Notwithstanding the “loyalty to the administration” angle, which also is at play here (of course), Mukasey would be putting himself in a very uncomfortable spot of taking over a Justice Department which he just implicitly admitted had engaged in criminal acts. Think about it, if he agrees with Whitehouse, then the next time AG Mukasey appears before the Justice Committee, there’s going to be a barrage of questions about: why aren’t you prosecuting Yoo? Why aren’t you tracking down the torturers?

[bmaz]

OK; this is a bit out there, but is incredibly important, and I want everyone possible to know about this. Pass the word and grow the outrage. Please.

The two owners of the local alternative progressive newspaper, the Phoenix New Times, have been arrested by the local Sheriff and County Attorney.

The charges stem from a story published under their byline in the Thursday edition of New Times, in which they describe a subpoena the paper reportedly received from a grand jury convened by the Maricopa County Attorney's Office.

The alternative weekly newspaper, in its cover story, said the subpoena was part of an investigation orchestrated to get back at its reporters and the critical stories they wrote of County Attorney Andrew Thomas' political ally Sheriff Joe Arpaio.

The scope of the subpoena is unusually broad: It not only demands information from the reporters but also information about all the online readers of the publication since Jan. 1, 2004, including their Internet domain names and browsers and what other Web sites they visited before reading New Times.

I know many of the folks at The New Times, several are friends. These are good people who do the only hard hitting investigative journalism done in Arizona anymore. Remember how Congressman Rick Renzi was recently taken out of commission over corruption? Well, it was the New Times that started the process back in 2003 with this article.

Our local Sheriff, Joe Arpaio, is a publicity seeking buffoon and the County Attorney, Andrew Thomas, is a young, extreme right wing, Dick Cheney loving (seriously), right to life, militant conservative, politically manipulative and ladder climbing jackbooted jerk. Their abuse of the grand jury and criminal process is shameful, unethical and outrageous to the extreme. This same County Attorney, Andrew Thomas, has also egregiously tried to silence and chill criminal judges here in Maricopa County by similarly outrageous attacks on the Assistant Presiding Criminal Judge.

Folks, everything we talk about here in terms of the national situation has just hit home in a big analogous way right here on the state and county level. When I, EW, Kagro X and all the others fine frequenters of this wonderful place talk about the need to have accountability, to have an impeachment investigation display what has gone on, and to once and for all put a stop to the totalitarian creep we have been witnessing; this is exactly why. By the way, did you all get that portion I bolded for you? If that isn't chilling, I don't know what is. This is the ethos of activity that Nancy Pelosi and Harry Reid are currently ratifying and condoning through their coddling of the Bush Administration and refusal to permit legitimate investigation and prosecution.

[orionATL]

oh, hell,

what a bunch of bleeding-heart liberals.

waterboarding ought to remain constitutional at least long enough to apply it to cheney and bush and gonzales and rove and mehlman and snow and several more of their fellow travelers

after the republicans are kicked out of the white house in 2008.

that way we will be able to acquire transcriptss of these serial public liars confessing their lies

on domestic

and on foreign policy matters.

big lie

by big lie

by big lie.

[P J Evans]

information about all the online readers of the publication since Jan. 1, 2004, including their Internet domain names and browsers and what other Web sites they visited before reading New Times

bmaz, I can't see how that information has any bearing whatsoever on the stories. WTF?? Why would any judge allow it?

[Kagro X]

That's it exactly, pinson. It's untenable, and it became so because of Bush's detainee policies (and a number of other, related factors).

Like the old joke about not joining any club that'd have me as a member, there is no person whose honesty and integrity would allow them to serve both the rule of law as Attorney General, and the president (as a real president would deserve to be served) as a member of his cabinet. Anyone who had the integrity it took to serve as Attorney General would have to immediately resign rather than carry out this president's policies. So in that sense, it's just not worth anyone's time to confirm any nominee.

[orionATL]

bmaz-

i saw an item on larkey and lacy earlier today at tpm (david kurtz).

i was outraged, too.

this is yet another example of the american right-wing's

abuse of the law and use of the law

to punish political opponents

which i commented on earlier in e'wheel's post on feiger.

it really is a form of terrorism - frightening and silencing folk with the threat of police and legal action,

with their attendant expense, damage to reputation, and incarceration.

although i'm not certain if i understood the whole thing,

it seemed to me that the crux of the matter was that the gov't had issued a subpoena to the newspaper to provide the names and email addresses of commenters/subscribers.

an obvious effort to extent the initial harassment of a grand jury investigation.

and now the two newsmen experience a third act of harassment when they go public in opposition to those prior efforts to mistreat and intimidate them.

this story, and that of the vietnamese woman tam tran which think progress noted,

represent the use/abuse of the law as an instrument of intimidation against political opponents.

kind of like what happened recently in zimbabwe when his opponents challenged robert mugabe and he had them beaten up and jailed.

the american right-wing and robert mugabe

brothers under the skin.

[freepatriot]

I been wondering when somebody was gonna mention the Phoenix New Times

the remedy in this case is simple

the "special prosecutor" has committed acts worthy of disbarrment, and he has no remorse about his actions

it's called Obstruction of justice, it's a federal crime, and this guy needs to talk to a Grand Jury about his conduct within the Judicial system

the Judge in the case has the notes, there were more than two people involved, and Conspiricy to Obstruct Justice is a serious crime

ask the stooges who contacted the judge if they're willing to endure disbarment and prision time to protect this "Special Prosecutor

ta da

we got ready made witnesses who should insure that Mr special prosecutor only appears in court as a defendant from now on

problem solved

[oldtree]

After what we have witnessed first hand, there is no nominee that could possibly be put forth that is not going to protect the person that is attempting to install them. Tis' the 14th warning sign of totalitarian behavior. There has never been any indication that the rule of law is important to anyone nominating, judging, contracting, .... well any act where the "ing" shows motion. With the exceptions where it concerns profiteering or racketeering. The verb has no function with noun any longer.
To continue the sham after Leahy's "apparent" cave in is hard to handle. For someone that has behaved as Mr. Leahy has in the past, one might be tempted to consider that he has been "altered". It is a striking transformation for someone that has always appeared to be trying to uncover potential "problems", to change and say this person is "okeydokey" is beyond reason for any of us not so transformed as to believe that a sudden shift causes blue to be red.
Has Leahy turned? He is making comments that sound as though he has been bought.

[oldtree]

and oh yeah to that story about the Phoenix New Times. truly incredible reporting on what is hard to believe as reality

[DeeLoralei in Memphis]

Bmaz, yea I read that at TPM too, and it both angered and frightened me.

I wonder if a little "civil disobedience" is called for. Would it confound the Atty and sheriff if say a few hundred or thousand extra of us went over to the New Times website and started commenting? I mean wouldn't that tie up them even more in investigating all of us, also? I'm willing to become persona non grata of the Mariacopa County Sheriff, if you think that'd help.

[freepatriot]

fuck civil disobedience

let's uphold the law here

what we have is a "Special Prosecutor" who contacted a judge thru an intermediary to alter the course of a Grand Jury Investigation

this is a CLEAR violation of the rules of the Bar, and a CLEAR violation of the laws of the State and the Nation

we don't need civil disobedience

we need to use the clear and legal remedy for this problem

disbar whomever acted as the intermediary, disbar the "Special Prosecutor", and enpanel a Special Grand Jury to hear charges of Tampering with the proceedings of a Grand Jury, Conspiricy to Obstruct Justice, and Obstruction Of Justice

The Judge who was contacted improperly has excellent notes of the conversation in question, including what reads as a confession and direct implication of the "Special Prosecutor"

there ain't gonna be any discussion about "If" these events occured. The "Special Prosecutor thinks he's done nothing wrong

let this putz tell his tale to a Grand Jury, and then start the clock on his conviction

wanna bet he sets a record ???

[MarkH]

Simply pathetic.

The man should not even be a judge, much less AG.

[BillE]

oldtree - Not bought, blackmailed. It's the math remember.

[sojourner]

bmaz, I agree wholeheartedly that Mukasey was a "substitute" nominee to basically cover for the t*rdbrain that Bush elevated to Acting AG. The thought crossed my mind when Keisler was suddenly substituted -- and I had to wonder if there was going to be a choice between living with the acting, or living with the nominee.

I have had the feeling that, regardless of what has been revealed, these idiots are continuing to try to pull off their plan. A subpoena such as was issued in the case of your local rag would have a very chilling effect on any attempts to report on issues. I hope that they are able to fight the subpoena and win.

There are always misdeeds, I guess, by elected officials, and there is always a bit of a nut element anywhere. It just troubles me that there are so many of them coming out of the woodwork at one time, like cockroaches. Sounds like you have a local infestation...

[katie Jensen]

What the hell do we do? Bmaz, that situation is right out of every media law class nightmare scenario I ever heard. In my journalism classes freedom of the press was the equivalent to "free".

I am feeling a bit insane. It seems I keep doing the same things over and over again. (blogging, passing it on, calling senators, having vigils, being part of move on.com, donating money to my causes. Insanity is doing the same thing over and over again and getting the same negative result.

What the hell do we do??? To do something different. To stop the complete and utter destruction of our constitution, our system of checks and balances, our democracy.

It reminds me so much of being married to an active alcoholic.

[phred]

sojourner -- you're right about them continuing to try to pull off their plan. After all, why wouldn't they? There have been no consequences, none, for their actions thus far. With impeachment resolutely off the table, we are now in legal free fall. No one but Congress can prosecute the administration. So why not arrest Tran or the local media or a guy carrying a sign at a state fair or appoint a pro-torture pro-UE git to be the next AG? Who will stop them? And meanwhile all those helpful stenographers are busy telling us all about Bush getting his way is a foregone conclusion, whether with his appointments or legislation. The administration and their jackbooted thugs can do as they damn well please. Thanks Nancy.

[bmaz]

KJ - Yeah, I dunno. Trust me, I understand the frustration. Keep fighting and doing what we are doing is the best I got. As bleak as it often seems, if you step back and think about it, tremendous progress has been made in some critical aspects. By that I mean mostly public perception. It was not all that long ago that most Americans trusted and believed Bush/Cheney and approved of their policies and war. I personally never understood how that could be, but it was so. Now, the opposite is true. By far more than a majority, Americans now don't trust Bush/Cheney, don't approve of their policies, and don't approve of their war or the fact that they started it, and have grave concerns over the illegal wiretapping. Places like TNH, and the motivated progressive people that participate here, as well as all the other sites that we all know and love, are a critical reason this grassroots shift has occurred. So, it is working, just not as fast and as completely (read the political leaders) that we would like. Can't give up; so we must press on.....

Everybody - Thanks for the response on the New Times bit. As I said earlier, these are good people and I have friends there. The New Times did major stories on several cases I was involved in, and even in the one case they blasted our client and defense of him, they were extremely professional and did great work (Not to mention client was one creepy mofo). Please keep your eye on this story, and I will try to keep making updates, because this is a very bad thing going on and County Attorney Thomas and Sheriff Buffoon, er I mean Arpaio, need to be stopped in their tracks.

[radiofreewill]

Well, Mukasey agrees that Torture is Un-Constitutional and against International Treaties and the Geneva Convention.

What he won't agree to do is form a His Own Opinion on Torture based on the Definition of Torture cited by those other Non-Bush agreements.

So, in light of Mukasey's inability to Form His Own Opinion on Torture, we are left to conclude the Obvious - He'll enforce Bush's Definition of Torture.

This does not square-up with his Wednesday testimony that he would be able to look the President in the eyes and tell him when something is Un-Constitutional, and if the President insisted on doing it anyway, he would resign?

If he were relying on Bush's Definitions for - Torture, Domestic-but-not-really-tee-hee Spying without a Warrant, 'due process' for USAs, 'three hots and a cot' in the Tropics at Gitmo, 'Leak Investigations' of the Media being used to 'paralyze' the IG and OPR, 'appropriate' Secret Compartmentalization and Classification, etc - then he would Never encounter an uncomfortable situation where he would have to tell Bush his actions were Un-Constitutional.

On Wednesday, Mukasey put his best 'Law and Order' foot forward and said with conviction that he could rally the sagging Department of Justice to the Rule of Law, leading all of US to believe that he would Support and Defend the Constitution as we know it.

But, then he showed US on Thursday how he looks at the Executive, his potential Boss, Bush, when he all but said that it's Bush's Word that is the very Basis for the Rule of Law codified into the Constitution.

Ergo, the Constitution is just a piece of paper - Bush, in dire circumstances, has been empowered to act as the Holy American Father, and is the living embodiment of the UE, the Spirit of the Country, and his word is the Supreme Law, above anything in paper documents like the Constitution, the Geneva Conventions, the 2004 Torture is Abhorent Memo, International Treaties, etc.

If Bush says 'simulated drowning' isn't Torture - even if it is explicitly outlawed in other World-Recognized Agreements, that the United States has signed - then water-boarding isn't Torture as far as Mukasey is concerned because 'simulated drowning' isn't Un-Constitutional - Bush said so.

[prostratedragon]

It appears that the nasty New Times case is being dropped.

'New Times' case dropped, special prosecutor fired

[bmaz]

OK! Good News. The charges against The New Times owners have been dropped: From the Arizona Republic:

Maricopa County Attorney Andrew Thomas announced Friday afternoon that he was dismissing the case against New Times and that no charges would be pursued against the editors and writers involved in the case.

Thomas also said he was dismissing special prosecutor Dennis Wilenchik, who had pursued the case on the county's behalf.

Thomas said that mistakes were made, that the case had been grossly mishandled and that he was uncomfortable with where the case had gone.

He said he had only learned in the past day that a subpoena had been issued for Web site information from New Times.

On Thursday, New Times published a story disclosing that a grand jury subpoena had sought extensive information about stories the paper published on Sheriff Joe Arpaio. The subpoena also sought information about readers of the New Times Web site, including their computerized addresses and which Web browsers they used.

“It has become clear to me the investigation has gone in a direction I would not have authorized,” Thomas said.

Well, that was fast eh? Heh heh. Guess all those calls to the Arizona State Bar, Arizona Attorney General Terry Goddard and the Maricopa County Board of Supervisors that I, and a lot of like minded attorneys and regular citizens, made really payed off. Not to mention that TPM, New York Times, and of course the wonderful people here, got the word out and exhibited outrage. By the way, County Attorney Thomas has previously tried to wrongfully investigate/prosecute our Attorney General, Terry Goddard. Goddard is, of course, a Democrat and Thomas wants either his or Governor Napolitano's job. This guy Andrew Thomas needs to be stopped and sent to whatever place of penance the rest of the Bush/Cheney criminals are destined for.

[bmaz]

OK! Good News. The charges against The New Times owners have been dropped: From the Arizona Republic:

Maricopa County Attorney Andrew Thomas announced Friday afternoon that he was dismissing the case against New Times and that no charges would be pursued against the editors and writers involved in the case.

Thomas also said he was dismissing special prosecutor Dennis Wilenchik, who had pursued the case on the county's behalf.

Thomas said that mistakes were made, that the case had been grossly mishandled and that he was uncomfortable with where the case had gone.

He said he had only learned in the past day that a subpoena had been issued for Web site information from New Times.

On Thursday, New Times published a story disclosing that a grand jury subpoena had sought extensive information about stories the paper published on Sheriff Joe Arpaio. The subpoena also sought information about readers of the New Times Web site, including their computerized addresses and which Web browsers they used.

“It has become clear to me the investigation has gone in a direction I would not have authorized,” Thomas said.

Well, that was fast eh? Heh heh. Guess all those calls to the Arizona State Bar, Arizona Attorney General Terry Goddard and the Maricopa County Board of Supervisors that I, and a lot of like minded attorneys and regular citizens, made really payed off. Not to mention that TPM, New York Times, and of course the wonderful people here, got the word out and exhibited outrage. By the way, County Attorney Thomas has previously tried to wrongfully investigate/prosecute our Attorney General, Terry Goddard. Goddard is, of course, a Democrat and Thomas wants either his or Governor Napolitano's job. This guy Andrew Thomas needs to be stopped and sent to whatever place of penance the rest of the Bush/Cheney criminals are destined for.

[bmaz]

Whoa. How did that happen? Very sorry for the double posting, no idea how it happened.......

[prostratedragon]

It's good to see that at least some of these folks can be stop-kicked.

And on the AG, KX might be right, we might not have that much to lose without one, and the process of getting one might only provide covering smoke and more occasions to armtwist senators into line.

(Sometimes the double-post happens to me when I refresh a page that has things entered on it.)

[Dismayed]

Mukasy is no suprise - we all knew that anyone Bush put forward would be another willing accomplice.

Just like we knew the Syria bombing stunk. Anyone who believed it was a nuclear site raise their hand. Okay, none of us, but it MSM as such, yet go over to Raw Story and we find it's Dick up to his old dirty tricks. Yellow Cake and coffee anyone.

[masaccio]

Good on you bmaz.

[Matt Connolly]

ou are missing the most important part of Mukasey's testimony which was on the first day. In answer to Senator Diane Feinstein, one of the few bright lights, Mukasey said that the Supreme Court has stated that the president has the right to seize a person on a battle field and hold him without charges and trial forever. Feinstein said, I'm talking about an American citizen seized on American soil. Mukasey got cute and said something to the effect that American soil could be considered a battle ground.

Come on folks. This guy makes Gonzalez look benign. He's smart and willful. He's already giving Bush ideas how to grab more of us off the street like the 1970s Argentina. . At least Gonzalez indicated he knew what torture is; whereas, Mukasey has no idea what it is but can assure us we don't do it. He'll be justifying throwing Americans out of helicopters over the ocean by saying they were only taking them out for a swim.

[sojourner]

Great job, BMAZ! And, it is nice to know that there are still some people who will uphold the law...

I have a fairly long commute each way to work, and I had an interesting thought on the way home today. Bush, Cheney, Gonzo, and all their buddies have done a fine job of shredding the Constitution. Despite Bush's comment the other day to the effect that he vetoes bills to show that he is 'relevant' (or something like that), the entire executive branch of government is rapidly making itself irrelevant.

Now, couple that with whatever is going on behind the scenes to cause congressional leaders to do (or not do) whatever they are doing, and essentially, Congress is making itself irrelevant, too.

You have the Executive Branch making a mockery of the third branch of government (the Supreme Court and judiciary), and Congress failing to enforce the law of the land. There is no branch of our federal government that is accomplishing anything.

I guess what it all adds up to is that our federal government is collapsing. Local and state rule will become increasingly more powerful -- but we will also get more nutty scenarios as happened with the subpoena that was served on that newspaper.

I don't dare go any further with where all this could go because it is too scary...

Maybe it is time to start saying a few prayers...

[Pete]

Two thumbs up for cboldt.

Instead of asking a nominee what is torture and what is not, they should pass a law clearly stating the techniques that are illegal since they amount to torture.

But this is the same gutless Congress that is afraid to use thier constitutional powers to stop the Iraq war.

No wonder approval for Congress is in the low teens, even lower than Bush's approval rating.

[cboldt]

-- Mukasey said that the Supreme Court has stated that the president has the right to seize a person on a battle field and hold him without charges and trial forever --

If he said that, I believe he erred. There must be a charge, regardless of where a person is taken from, in order to justify indefinite detention. The typical charge for a POW involves being caught engaging in hostilities. That person may be held as a POW until hostilities cease. This paradigm is applied in the context of the AUMF, which authorized military action in Afghanistan. Note the "that understanding may unravel" comment by the Supreme Court. It seems to be a reference to the generic "War on Terror," which lacks the specificity of conflict embodied in the AUMF.

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.

Hamdi v. Rumsfeld, 542 US 507 (2004)

Scalia and Stevens, in dissent, would require charging Hamdi (a US citizen) with a crime, or, failing that, turning him loose. They hold that a US citizen cannot be a US-held POW. Thomas would not second guess the administration.

[Pete]

And how many Democratic Senators are going to vote against Mukasey?

[orionATL]

congratulations bmaz and fellow citizens in ariz.

but i'd like to point out that this ruthless action, by a local jurisdiction in arizona,

is a clear indication

that the use&abuse of the law which the bush/cheney presidency has repeatedly sanctioned from washington

has spread like a virus throughout the country, down to the local government level -

monkey see, monkey do -

a clear warning to all of us
of how rapidly abusing the law and the courts

CAN spread like a plague to lower levels of government.

regrettably, that's facilitated by a part of our human nature - it will always happen if allowed to do so.

and that's one reason why it is so important that the abuse initiated and modeled by bush, cheney, rove, et al., be stopped and be punished severely.

that is,

stopped by prosecutions and disbarments of those lawyers, prosecutors, and judges who were instigators and collaborators.

and by impeachments of those gov't officials who encouraged or authorized misuse of the law to suppress dissent or political opposition.

[John Lopresti]

So far, no transcript available anywhere I have looked, for Mukasey first 2 days of hearing, though SJC has a video link to CNN; video avoids textsearchengines. Usually WaPo makes the CQ transcript for important hearings available same day.

[bmaz]

Thanks folks, but I didn't do anything but post the story here and another couple of places and make a few pissed off phone calls, some to the authorities, some to friends to get them to do the same. There were clearly a lot of people who were doing the same from the reports of the people I spoke with; a LOT of people doing the same. Whoever, and wherever, those people are, they did a very good thing and achieved a great result in a very short time. Without the net, both blogs and news sites, this could never have happened at this speed.

[Pete Pierce]

"The problem is that Bush's policies have made it impossible for any nominee for Attorney General who hopes to retain any amount of faith with this "administration" to answer these threshold questions with any amount of honesty...Anyone who would hold that job in this "administration" will by definition be reduced to serving as a placeholder only -- a mere figurehead to whom everyone will, out of pure habit only, refer to as the "Attorney General," but who will at the end of the day be prevented from administering the law he will have sworn to uphold. "

Very well put, and one problem among many. Mukasey has been so freaked and panicked by 911 (not realizing that the department he seeks to occupy and it's incompetence had much to do with its success) that he has embraced the Unitary Executive and abused the rights of scores of innocent litigants in his court room.

He should not be anywhere near DOJ, and it is fortunate that he's off the bench:

Post-9/11 Cases Fuel Criticism for Nominee

Before the hearing, Mr. Awadallah told his lawyer that he had been beaten in the federal detention center in Manhattan, producing bruises that were hidden beneath his orange prison jumpsuit. But when his lawyer told this to Judge Mukasey, the judge seemed little concerned.

“As far as the claim that he was beaten, I will tell you that he looks fine to me,” said Judge Mukasey, who was nominated by President Bush last week to be his third attorney general and is now facing Senate confirmation hearings. “You want to have him examined, you can make an application. If you want to file a lawsuit, you can file a civil lawsuit.”

Even though Mr. Awadallah was not charged at the time with any crime and had friends and family in San Diego who would vouch that he had no terrorist ties, Judge Mukasey ordered that he be held indefinitely, a ruling he made in the cases of several other so-called material witnesses in the Sept. 11 investigations.

"Critics say a 1984 material witness law was abused by the Justice Department, and by Judge Mukasey and his judicial colleagues, to hold terrorist suspects indefinitely after Sept. 11 without having to accuse them of a crime and afford them the rights of a criminal defendant.

The roundup of men like Mr. Awadallah under the material witness law in September and October 2001 was an early effort by the Bush administration to rewrite or reinterpret laws on the detention, interrogation and surveillance of people suspected of terrorist ties after the Sept. 11 attacks — a campaign that is now the subject of furious debate between the White House and the Democratic leaders of Congress.

Critics say the material witness cases before Judge Mukasey after Sept. 11 offer insight into his performance and temperament at a time of duress. The cases came before him at a time when New York was still in turmoil, with the courthouse in Lower Manhattan, only blocks from the rubble of the World Trade Center, partly shut down and operating under extraordinarily tight security."

Mukasey has zero qualifications as a physician, and what the BOP uses has the same. It was an imbecilic statement for a federal judge to make from the bench, but not all that unusual considering that the vast majority of them who didn't come from DOJ in the first place have little to no federal courtroom experience prior to taking the bench.

Mukasey was giving the standard "say nothing" testimony after being prepped by the team Fred Fielding assigned to prep him.

Mukasey's change in tone from Wednesday to Thursday was precisely because he is a placeholder and a puppet of the West Wing.

I haven't seen any backbone yet from Leahy or Specter on any particular important comfirmation or vote, and I wouldn't hold my breath waiting for any while they remain in the Senate.

They annointed Roberts and Alito, and if you haven't gotten the message yet, you certainly will with this term's opinions.

Whitehouse, a former U.S. Attorney, asks prescient questions, but unfortunately none of the witnesses since h e was elected to the Senate ever chooses to answer any of them on instructions from Fielding.

Bmaz's observation is interesting, and probably right on the money as to Kiesler.

To Bmaz's point on interim appointments at the highest levels of DOJ:

The No. 2 and No. 3 officials are also acting — Deputy Attorney General Craig Morford and Associate Attorney General Gregory Katsas. More than a quarter of the department's 93 United States attorneys around the country are "acting."

Under a 1998 law known as the Vacancies Reform Act, acting government officials can remain in their posts for 210 days with the full legal authority they would otherwise have with Senate confirmation, with the calendar reset to 210 days once a nominee's name has been forwarded to the Senate. As of next Monday, there are 455 days left in Bush's term.

I believe this contrasts with the US Attorneys in the 93 districts where the districts' judges have taken votes on retaining the interim appointments.

[Pete Pierce]

Very nice result in Arizona bmaz and the rest. Here's a link for the transcripts of the Mukasey hearings before Senate Judiciary Committee Day 1 and Day 2:

Before Senate Judiciary Committee, Day 1 (Oct. 17, 2007)

Before Senate Judiciary Committee, Day 2 (Oct. 18, 2007)

and

Plainly, a Justice Department Pick of Like Mind by Adam Liptak NYT October 20, 2007

[nancy]

If he's not sure it's torture he should try it.

[John Lopresti]

Got the transcripts,pP.

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