Vote NO On Mukasey as Next Attorney General

October 19, 2007 at 2:29 pm | Posted in American politics, corruption, mukasey, secret combinations, Torture | 2 Comments


Because he declined to name waterboarding torture. Because he thinks the President of the United States can effectively be above the law if the President so believes it is necessary. This is evil stuff.

Andrew Sullivan writes:

Matt calls him “completely unacceptable.” Having read the testimony, I’m afraid I have to abandon my early hopes and agree. An attorney general who believes a president has a permanent right to ignore the rule of law because peacetime is now wartime for ever, is an attorney-general defending the rule of one man over the rule of law. If I were a Senator, (heh, indeed) I’d vote no. This is the faultline of our time. If we are redefining war as a permanent state of being, and redefining presidential authority to give him/her extra-legal and extra-constitutional power to what s/he wants anywhere in the world, including the United States and to its citizenry, then American liberty is in extreme peril. To approve an attorney general who does not dissent from this position is a terrible precedent.

Don’t people see that this is what Cheney is doing? He is setting precedent after precedent for totalist, secret executive power. And with each precedent for unchecked, uncontrollable executive power – including the power to detain and torture within the United States – the America we have known is being surrendered. This is the other war – a constitutional war at home against American liberty and the Constitution – as dangerous in a different way as Islamism. One attacks our freedom from the outside; the other hollows out our freedom from within. The fight against both is the calling of the time.

I think we’re in denial about this. Following Mukasey’s statements with confirmation would set a precedent we may well deeply regret. Think of another terrorist attack. Think of the Cheney precedents. Think of Giuliani in the White House. Now think of what would be left of democracy and the Constitution the day after.

Kevin Drum writes:

Mukasey had a good start the other day, telling the Senate that we didn’t liberate Nazi concentration camps “so we could then duplicate it ourselves.” Unfortunately, when the questioning got a little more specific, it turned out he wasn’t entirely sure what counted as torture and what didn’t.

This just shouldn’t be hard stuff. It’s a sign of the moral decay of the Bush era that we even find ourselves arguing about it.

Mark Kleiman writes:

I understand Mukasey is supposed to be a reasonably good guy, by comparison with the run of Bush appointees. But if Mukasey won’t say that waterboarding is torture and claims that the President has some undefined power to violate statute law ā€” even criminal laws, such as the ban on torture and other war crimes ā€” under his “Article II powers,” then why should the Senate Judiciary Committee even bring his nomination to a vote? If he says he hasn’t read the latest torture memos or decided whether waterboarding is torture, Sen. Leahy ought to tell him to read the memos and observe a waterboarding session and come back when he’s done his homework.

I see no disadvantage in the Senate Democrats taking a firm stand on the rule of law and human decency.

(courtesy of Stefan Zaklin/European Pressphoto Agency)

This man should NOT be even considered as an Attorney General. Take a stand for what is right, Senators!


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  1. Brian Tamanaha of Balkinization writes:

    I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain.

    He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes “torture” (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

    At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff.

    Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture. For Mukasey to say that he first must study whether water boarding is “torture” is a disgrace.

    My German colleague wanted to know how the Democrats and the American people could allow such a person to be confirmed.

    Here was my response:

    The Democrats are so cowed by the fear of appearing weak on fighting terrorism that they won’t take a principled stand and insist that a person who cannot forthrightly state that water boarding is “torture” is neither legally nor morally qualified to be the Attorney General.

    As for the American people, I said that while most are against torture in the abstract, they don’t get worked up about the issue. And a fair number probably don’t object to torture if it’s done to bad guys who are trying to hurt America.

    I hope I am wrong, but that’s the best I could come up with.

    Anyone who has a better explanation, please let me know.

  2. hilzoy adds:

    Last time I checked, the Constitution does not give the President the authority to defend the country. It says that he “shall be 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” (Art. 2 sec. 2), but that’s hardly the same as saying that he gets to do whatever it takes to defend the country. On the other hand, the Constitution explicitly says that the President “shall take Care that the Laws be faithfully executed.” (Art. 2, sec. 3.) It doesn’t say that he has to take care that the laws he likes, or the laws he feels like obeying, or the laws he would have passed if he were the Congress, shall be faithfully executed; it says that he has to take care that the laws, period, without exception be faithfully executed. How anyone can look at Article 2 and conclude that the President has the right to disobey duly enacted laws when the national defense requires it is a mystery to me.

    This is not a minor matter. The Attorney General is the chief law enforcement officer of the United States. If he is not firmly committed to the rule of law, and to the idea that the President is bound by any law enacted by Congress, and to the view that when he thinks a law is wrong, the correct response is either to challenge its constitutionality in court or to suck it up and obey it, then he should not be confirmed.

    It’s as simple as that.


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