Mukasey makes matters more difficult

After Alberto Gonzales’ humiliating and painful tenure as the nation’s chief law-enforcement officer, I was beginning to get my hopes up about Attorney General nominee Michael Mukasey.

Right off the bat on Wednesday, he rejected the infamous Bybee memo, and compared U.S. torture policies to Nazi Germany. The rest of the day was nearly as encouraging, with Mukasey vowing to end Justice Department “stonewalling,” and insisting he would resign if Bush tried to do something unconstitutional. No more partisan considerations in employment, Mukasey said. No more “unilateralism,” he promised.

Everyone was impressed, and said so. And then Day Two happened.

President Bush’s choice for attorney general, Michael B. Mukasey, embraced some of the administration’s most controversial legal positions yesterday, suggesting that Bush can ignore surveillance statutes in wartime and avoiding a declaration that simulated drowning constitutes torture under U.S. laws. Mukasey struck a different tone on the second and final day of his confirmation hearing, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president cannot override constitutional and legal bans on torture and the inhumane treatment of prisoners.

How bad was it? It’s hard to believe his nomination is in jeopardy, but Mukasey offered ample reasons for senators to reject him as the next Attorney General.



Mark Kleiman has a good post on the subject.

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 — even criminal laws, such as the ban on torture and other war crimes — under his “Article II powers,” then why should the Senate Judiciary Committee even bring his nomination to a vote?

Quite right. In response to questions about authorizing surveillance, Mukasey suggested there may be circumstances in which the president can ignore federal law. In response to questions about waterboarding, Mukasey would only say, “If waterboarding is torture, torture is not constitutional.”

As Sullivan put it, “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.”

All of this led some senators to wonder what happened between Wednesday’s Mukasey and Thursday’s Mukasey. Judiciary Committee Chairman Pat Leahy (D-Vt.) noted, “[O]n a number of your answers yesterday, there was a very bright line on the questions of torture and the ability of the executive or inability of an executive to ignore the law. That seems nowhere near as bright a line today.”

Given the circumstances, one has to wonder if perhaps the White House intervened on Wednesday night. Mukasey rejected the idea.

At one point, a flustered Leahy asked Mukasey “whether you received some criticism from anybody in the administration last night after your testimony,” leading to a different set of answers at yesterday’s hearing. “I received no criticism,” said Mukasey, who was measured and soft-spoken throughout his testimony. “I had dinner with my family last night.”

I’d like to think Mukasey would be a step up from Gonzales, though that’s not saying much. But yesterday’s testimony suggests our next Attorney General may share some of the dangerous ideas that plagued our last Attorney General.