Thursday, January 31, 2008

Mukasey: Why Was He Ever Confirmed~ Amnesia Sets In~

~It's not as if he's changed his tune all that much, & as with all prospective politicos, tells you what he thinks you want to hear until the morning after ~
Democrats, & even some Republicans, regret drinking the kool-aid, but only when the hangover won't go away.
Remember this, last November, in the NYT, reporting on Michael Mukasey's nomination as the 3rd Attorney General to serve under Bushco?
"Six Democrats joined 46 Republicans and one independent in approving the judge, with his backers praising him as a strong choice to restore morale at the Justice Department and independently oversee federal prosecutions in the final months of the Bush administration.
"Thirty-nine Democrats and one independent opposed him.
'The Department of Justice needs Judge Mukasey at work tomorrow morning,' said Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee. 'The Department of Justice has been categorized as dysfunctional and in disarray. It is in urgent need of an attorney general.'
"But Democrats said Mr. Mukasey’s refusal to characterize waterboarding, an interrogation technique that simulates drowning, as illegal torture disqualified him from taking over as the nation’s top law enforcement official.
'I am not going to aid and abet the confirmation contortions of this administration,' said Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee. 'I do not vote to allow torture.'
"All five senators who are running for president -- Joseph R. Biden Jr., Hillary Clinton, Barack Obama, Christopher J. Dodd, all Democrats, and John McCain -- did not cast votes. The four Democrats had said they would not support Mr. Mukasey because of his equivocation during the confirmation hearings over whether waterboarding is torture. Mr. McCain has also denounced the interrogation method but he issued a statement last week saying he would vote to approve the nomination.
"Mukasey was initially hailed by Democrats as a leader who would bring welcome change to the Justice Department. His nomination had been recommended by Senator Charles E. Schumer, Democrat of New York, a member of the party leadership familiar with Mr. Mukasey from his service on the bench in New York.
"On the first day of his confirmation hearings, Mr. Mukasey said he would resign if directed by the White House to take any action he believed was illegal or violated the Constitution, winning Democratic praise. On the second day of his testimony, Mr. Mukasey sidestepped the question of whether waterboarding was torture and also suggested that the president’s Constitutional powers could supersede federal law in some cases.
"Those responses stirred strong Democratic opposition, throwing his confirmation into question. Trying to stem the rising opposition, Mr. Mukasey said that while he personally found the concept of waterboarding repugnant, he could not pass judgment on whether it was illegal because he had not been briefed on administration interrogation techniques.
"Senator Dianne Feinstein, Democrat of California, said she was confident that Mr. Mukasey would be nonpartisan and that his refusal to make a judgment on torture without knowing all the facts of interrogation policy should not keep him from the post.
'This man has been a judge for 18 years,' said Ms. Feinstein, who along with Mr. Schumer provided the key supporting votes to push Mr. Mukasey through the Judiciary Committee. 'Maybe he likes to consider the facts before he makes a decision.'
"But she was in conflict with most of her Democratic colleagues. Senator Harry Reid of Nevada, the Democratic leader, opposed the choice even though he said he was predisposed to back Mr. Mukasey.
'During his confirmation hearings, Judge Mukasey expressed views about executive power that I and many other senators found deeply disturbing,' Mr. Reid said. 'And I was outraged by his evasive, hair-splitting approach to questions about the legality of waterboarding.'
"Republicans hailed Mr. Mukasey and accused Democrats of stalling the nomination and focusing on the torture issue to score political points. 'The Department of Justice has a vital role to play in the war against Islamic terrorists, and it is critically important that it have a leader who can ensure that it fulfills its mission,' said Senator Jon Kyl, Republican of Arizona. 'Judge Mukasey is this kind of leader.'
That was then, this is now: Mukasey takes Bush direction well, adopting familiar nonsensical positions.
Dahlia Lithwick, one of my favorite legal commentators, points out in an article on Slate that:
.."Where Gonzales tended toward weaselly whininess, Mukasey is inclined toward curt directness. In response to an elaborate three-part question from Sen. Chuck Grassley, R-Iowa, toward the very end of a very long day, Mukasey responds, 'It is, we are, and I do.' Where Gonzales invariably blamed some faceless 'senior leadership of the department,' Mukasey is willing to shoulder sole responsibility for his decisions.
"The problem is that Mukasey is only willing to make and defend his decisions without explaining them. Still, he is very convincing in asserting that even though his decision is secret and its rationale is secret, and all future applications are secret, he is nevertheless confident that it's the right decision.
"As you'll recall, last October, nominee Mukasey promised the Senate that while he couldn't yet offer an opinion on the legality of the alternative interrogation technique called water-boarding, he'd be able to do so once he was 'read into the program.' As you may also recall, that nonanswer came close to scuttling his nomination. Last night, Gen. Mukasey let the Senate know in a sort of constitutional Dear John letter that he wouldn't opine on water-boarding today either, both because we stopped doing it and because it's 'not an easy question.'
"In other words, having set about diligently to scrutinize the legality of the interrogation program, its legal justifications, and its applications, the nation's top lawyer has come up with this lawyerly answer: It depends.
"Over the course of a long, maddening day, it's quickly manifest that Mukasey's legal opinions have a 30-second shelf life. He won't opine on what's happened in the past and he won't opine on anything that might happen in the future. When Sen. Arlen Specter—concerned about seven years of vast new claims of executive authority—asks Mukasey whether, in his view, the president 'can break any law he pleases because he's the president—including, say, statutes banning torture,' as well as FISA and the National Security Act, Mukasey replies, 'I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids.'
'Well, he did just that when he violated the Foreign Intelligence Surveillance Act,' Specter shoots back. Mukasey's response? 'Both of those issues have been brought within statutes.'
"Specter is flabbergasted: 'But he acted in violation of statutes, didn't he?'
'I don't know,' Mukasey replies. But does is really matter? What's past is past.
"Enter Sen. Ted Kennedy, D-Mass., as the ghost of Christmas Future. Even if Mukasey won't opine on past water-boarding, might he give some future guidance for future torturers? 'In your letter,' says Kennedy, 'you wouldn't even commit to refuse to bring water-boarding back, should the CIA want to do so. You wouldn't take water-boarding off the table! … Under what facts and circumstances would water-boarding be lawful?'
"But Mukasey won't speculate about future water-boarding, either, claiming he will not be drawn into 'imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities.' He also refuses to tell 'people in the field ... what they have to refrain from or not refrain from in a situation that is not performing.'
"Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey's eyes at the witness table in the Hart Senate Building, America's lawyer cannot hazard an opinion as to its legality.
"Joe Biden, D-Del., gets Mukasey to obfuscate even further. Mukasey explains to Biden that the legal test for torture—conduct that 'shocks the conscience'—has less to do with shocking the conscience than the exigency of the situation.
Under his test, torture that 'shocks the conscience' can be 'balanced against the information you might get that couldn't be used to save lives.' That's not a legal rule. It's a judgment call.
"Biden calls him out on it: 'You're the first person I've ever heard say what you just said ... I just never heard the issue of torture discussed in terms of the relative benefit that might be gained from engaging in the technique.'
Russ Feingold, D-Wisc., pounds away at Mukasey's claim that he can't define water-boarding as torture without 'tipping off our enemies about how we apply our laws.' If that's so, wonders Feingold, 'How could you ever prosecute such acts as crimes?' Mukasey replies that a subcontractor was once prosecuted for abusing a detainee. See? Problem solved.
"Dick Durbin, D-Ill., gets off the best line of the day when—citing Mukasey's statement that 'reasonable people can disagree' about the legality of water-boarding—he asks the attorney general to name some on the pro side.
"And Sheldon Whitehouse, D-R.I., tries to get Mukasey to explain why the Justice Department is investigating the destruction of the CIA torture tapes, but not investigating the underlying torture itself.
"Mukasey's reply, 'I don't start investigations out of curiosity,' speaks for itself. When Whitehouse tries to get Mukasey to agree that they both know enough classified information to have a very concrete, nonspeculative legal discussion about whether what happened on those tapes is legal, Mukasey again insists that whether or not what happened on those tapes is legal is about which 'certifications were given' and 'who permissibly relied on it.'
"Whitehouse calls this the 'Nuremberg defense. ... I had authorization and therefore I'm immune from prosecution.'
"More and more frequently, we hear members of the Bush administration crying about the evils of "lawfare"—the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You'd think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it's better to make them up in secret as you go along."
"Thank You. Now Go to Hell":
Yes, Democrats who voted for Mukasey, the Democratic presidential candidates who conveniently stayed out of it, & even some Republicans are all now belatedly waking up to find the new AG-Prince Charming not only has feet of clay & looks a lot like George Bush (eek!) but farts under the covers.



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