Once again, nobody for Attorney General.

by Kagro X

One 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.”

Rubenfeld elaborates:

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.

True.

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."

Comments

[RevDeb]

Kagro,
Can you go into some detail as to what will happen if we are stuck with the guy who is currently acting AG? How is that any better or worse than the insulting nominees that W will put forward? What authority will he have or not have by virtue of not being confirmed by the Senate?

Thanks

[Kagro X]

My contention is that it doesn't matter. Neither Mukasey nor any acting Attorney General is in actual charge of the Department of Justice. The Attorney General of the United States is David Addington, and the Department of Justice is an office of the White House.

To the extent that an acting Attorney General is restricted in some legal way from executing vital functions with dispatch, it will only be because the "administration" has selectively decided to respect the "rule of law" for political purposes, no doubt so that it can blame "Democratic obstructionists" for the delay and its attendant fallout.

But the whole point of Mukasey's answers -- and I would argue that you'll get either the same answers from any nominee or a calculated lie instead -- is that the "administration" does not consider itself bound by statutory law when it thinks the issue is pressing enough, and possibly never, no matter what the issue is, for all that may matter.

For them to force Mukasey into a position where he has to give that answer to the Senate Judiciary Committee, and then to turn around and say that not having an AG creates insurmountable legal complications is a fraud of the highest order.

[freepatriot]

the presnit didn't take an oath to defend US (We The People)

the presnit took an oath to defend the Constitution of The United States

any deviation from that task is a failure

when george bush violated the laws of The United States, george bush failed in his sworn duty to uphold and defend the US Constution and all laws made thereunder

how is it that this bunch of manichean idiots can't grasp that simple fact

it's a "Black or white" issue

presnit numbnuts is either defending the constitution or he ain't

[radiofreewill]

In BushWorld, the AG is the Chief Legal Enabler of Bush's Infallible Opinion - One of the most important of the UE Ass-Kissing Positions.

Mukasey's job will be to rationalize any reach into any patch of the Rule of Law that comes into conflict with Bush's Opinion, and Use Smooth Non-Descript Words to 'allow' Bush to go freely where others would find Jail, or War Crimes, or Election Fraud, or Law Suits - you know, the Gonzo Model, but with cleverer use of "Kingdom" double-speak.

Mukasey should be shredded as a sniveling weakling sycophant in waiting just for Conceding Bush the Extra-Legal Space to operate as the UE without 'Checks and Balances.'

One of the Senators should ask Mukasey point blank: "Do you believe Bush, under any circumstances, has the unfettered power traditionally reserved to Kings - where solely his Opinion is Law? And, if so, do you see the AG Position as the Chief Certifier of the Legality of his King-like Opinion?"

[phred]

Kagro -- I agree completely. We would be much better served if the Senate does not confirm Mukasey or any other Bush nominee. We are already getting along with a loyal Bushie AG and we can continue to do so -- honestly how much worse could DoJ get than where it is already?

I see this not as a test for Mukasey, but as a test for the Senate. If they confirm someone who has testified that the President determines what is the law, then they have confirmed their own irrelevance.

It also troubles me greatly that the Senators have placed such singluar importance on waterboarding. From what I've read of the other treatment, stress positions, extreme temperatures, loud music, and who knows what else, there is an awful lot of torture going on that must be stopped. When one contrasts our current interrogation techniques with those employed during World War II (http://www.washingtonpost.com/wp-dyn/content/article/2007/10/05/AR2007100502492.html?hpid=topnews), and further reflects on their effectiveness (nil for the former, and quite a lot for the latter), we get a glimpse of how far we have fallen.

[Canuck Stuck in Muck]

There's an easy rejoinder to those who, like Mukasey, want the President to have the authority to circumvent or ignore the statutes because of his "authority to defend the country." Unless I'm mistaken, Article II of the Constitution, embodied in the Presidential oath, is a duty to ''preserve, protect and defend the Constitution of the United States.'' Thus, the constitution gives POTUS the authority to defend the constitution, not "the country." The constitution says nothing about defending the country. Perhaps Mukasey and others are implying that POTUS's other constitutional calling supercedes law if it's in defense of the country. POTUS is the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States," yet that cannot be construed in any way to suggest that the President is empowered to say and do ANYTHING in "defending the country." His power is as Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Given that Congress alone has the power to declare war, and by extension, to authorize the use of force, Congress alone must be empowered to make the laws that govern the behavior of both the soldiers and the Commander in Chief. It's dead easy. Someone on the friggin' SIC should be able to blow right past such a statement by a propective AG! What chaff we have in office if they can't even read and understand the constitution.

[bmaz]

Phred - You are exactly right about the mindless singular focus on waterboarding. How freaking inane can they get? so Mukasey does an about face on this one little aspect (probably would be a lie anyway) and everything else is good to go? What a crock of dung. I will have to say that the blogosphere has contributed to this problem to some extent by focusing so much attention on waterboarding alone...

[P J Evans]

Canuck

It's been clear for some time that they haven't read the Constitution and probably wouldn't understand it if they had. And that oath of office they take is just a bunch of words with no meaning attached.

[phred]

PJ -- I think they only take the oath so they can get a photo op with their hand on a bible to send out to their religiously inclined donors ;)

[hardheaded liberal]

Phred & bmaz

I'd suggest that waterboarding is an unambiguous litmus test for whether Shumer will be able to abandon Mukasey after all the nice things that Chuck has said about the Judge.

It's little short of remarkable that both Shumer & DiFi joined the Democratic Senators' letter confronting Mukasey. I suspect that Whitehouse, Feingold, and probably Leahy & others would have been only too happy to add the dimension of the President not being bound by statutes. However, politics still being "the art of the possible," senators who want to protect the rule of law have probably judged that it is sufficient to have unanimity of the Democrats in opposing Darth Cheney & Dubya on a point that both Cheney & Bush apparently consider a "deal-breaker".

Since a blogger (Kagro?) recently noted that waterboarding is functionally equivalent to one of the three forms of "enhanced interrogation" used by the Spanish Inquisition, the Democratic Senators probably also believe that by focusing on waterboarding they are providing a clear and widely-respected ground for rejecting the Mukasey nomination. Even Senator Lindsay Graham (R-SC) is talking about rejecting Mukasey's nomination if the Judge continues to defer to the Addington-Cheney-Dubya definition of "torture."

Graham, a long-time Judge Advocate General officer in one of the Reserves (Air Force?), is probably getting from his JAG colleagues at least encouragement, if not heated insistence, on defining waterboarding as torture. Note also that Graham is up for re-election in 2008. Though Graham has been attacked from the right in SC for some of his moderate positions, one state-wide poll about six months ago showed Bush's approval rating in SC at only 35%. Graham's publicly moving toward the Reality-based position on torture may be an effort to motivate moderates to come out and vote for him in 2008.

The administration's efforts to require the Attorney General to defer to the White House on key legal matters looks very much like another attempt (like commuting Libby's sentence) to engage in a conspiracy to prevent discovery of illegal activity by the President. As such, like the Libby commutation, Bush's subordinating the legal opinions of the DOJ to the White House could be a very popular ground for impeachment of Bush & Cheney jointly.

PS All that said, hasn't FISA always had, perhaps as a "savings clause," an explicit exception that acknowledges that IF the President has independent authority under the Constitution to wiretap without respecting the FISA constraints, FISA does not purport to restrict such executive authority under the Constitution? (By "savings clause," I mean a provision that would prevent the whole statute being thrown out as unconstitutional if the Supreme Court ever decided that the President does have some scope of wiretap authority under the Constitution that the Congress cannot restrict or regulate.)