Perspective

Mukasey will be better than who's gone before, yet...

By ROBYN BLUMNER
Published October 21, 2007

Part of me can't help being optimistic about Judge Michael Mukasey, President Bush's latest nominee for attorney general. Compared with the mental midgetry of Alberto Gonzales and the nutty fundamentalism of John Aschroft, Mukasey is an apotheosis of smarts and good sense. Yet, there are parts of Mukasey's record as a judge that remain disturbing, and his confirmation hearings only amplified those.

Mukasey clearly has enough bipartisan support to waltz into office. But his appearances before the Senate Judiciary Committee were more than just a pro-forma exercise. The Democrats and the handful of Republicans on the committee who actually care about the mincemeat being made of our constitutional principles were able to get Mukasey on the record on issues like prisoner mistreatment and the limits of executive power.

Mukasey was commendably forthright on how he would de-politicize the Justice Department. It was refreshing and sincere. But his answers were vague and squirrelly when discussing key separation of powers issues.

Mukasey refused to acknowledge that Congress has the power to limit the president's use of military force (Iran, here we come). He just said that he hoped there wouldn't be a conflict between the two branches on that point.

Mukasey could not be this naive. The entirety of the Bush presidency has been about the president disregarding congressional will. The last two Bush-appointed attorneys general largely went along. It appears Mukasey will, too.

On the issue of torture, Mukasey's first dance was with the committee chairman, Sen. Patrick Leahy, D-Vermont. Mukasey condemned torture because that "is not what this country is about," but when asked about particular interrogation practices such as waterboarding, Mukasey refused to call those methods illegal. On hearing Day Two, Mukasey told Sen. Sheldon Whitehouse, D-R.I., "If waterboarding is torture, torture is not constitutional."

Notice the big "if."

This is essentially the same tactic used by the president in defending against torture allegations. Bush insists we don't torture, because the pain and suffering we inflict on our prisoners has been defined in the Unabridged Bush Presidency Dictionary as something other than torture. (A little dunk in water, as the vice president might say.) If Mukasey buys into this semantical legerdemain, as he seems to, then he's not worthy of the job.

Mukasey was cool through most of the hearings but was clearly defensive when Sen. Dianne Feinstein, D-Calif., drilled into his wrongheaded ruling in the case of American "enemy combatant" Jose Padilla. Mukasey found that, as long as "some evidence" exists, then the president may seize U.S. citizens, such as Padilla, and detain them without charge. His one concession to civil liberties was that Padilla be allowed to consult with a lawyer. (A step that the Justice Department had aggressively resisted.)

In answering Feinstein's questions, Mukasey first defended his ruling, even though a federal appeals court had overturned it. He claimed that the U.S. Supreme Court in another case, involving an American enemy combatant picked up in Afghanistan, had affirmed his basic findings.

In fact, in that case the high court granted Yaser Esam Hamdi far more due process rights than Mukasey granted Padilla.

When Feinstein reminded Mukasey that Padilla was a U.S. citizen picked up on American soil, not the Afghan battlefield like Hamdi, Mukasey offered this: "I can't say that ... there is clear authority authorizing what I thought there was authority to authorize in Padilla."

Feinstein thanked Mukasey profusely for this tidbit, but Mukasey was making no concessions. He obviously still believes that Americans can be held indefinitely without charge on the president's say-so. In the same vein, Mukasey indicated repeatedly that he believes that the president has inherent constitutional authority to ignore statutory limits on warrantless wiretapping on Americans.

Both points are distressing.

Republican Sen. Arlen Specter of Pennsylvania couldn't get Mukasey to answer a pointed question on whether Guantanamo prisoners have habeas corpus rights grounded in the Constitution. Mukasey said he had to "watch (his) mouth about this," because the issue is before the Supreme Court.

So? He is free to offer his judgment.

Obviously he intends to stick with the department's position that Guantanamo prisoners may never challenge their indefinite confinement in court.

Mukasey will be a better attorney general than the last two. He's a lot smarter, for one. I expect he will also bring professionalism and a measure of independence back to the crippled agency. Yet, what is needed most is an attorney general who will not just refuse phone calls from officials trying to influence federal investigations, but one who will stand for long-standing American values of decency and fair treatment, even toward our enemies.

Mukasey was one of the judges who, after 9/11, facilitated the preventive detention of hundreds of Muslim men who were jailed until cleared by the FBI. They were considered terrorists until proven innocent. Mukasey's confirmation hearings demonstrated that these instincts still stand.

[Last modified October 22, 2007, 09:17:29]