November 01, 2007
Bush Seeks To Head Off Fight On AG Nominee
President Bush delivered yet another harsh reprimand of the 110th Congress today, this time with a warning against holding up the nomination of former federal Judge Michael Mukasey for attorney general.
"Judge Mukasey has been praised by Republicans and Democrats alike as a man of honesty, intellect, fairness and independence," Bush said in remarks before the Heritage Foundation. "Judge Mukasey provided nearly six hours of testimony, patiently answered more than 200 questions at his hearing and responded to nearly 500 questions less than a week after his hearing. Yet the Senate Judiciary Committee is holding up his nomination."
Earlier today, the president called reporters to the Oval Office to air his frustration over criticisms of Mukasey. The New York Times described the unusual meeting as "a strong signal that Mr. Bush thinks the nomination of Mr. Mukasey, once seen as a sure thing, is in trouble over his responses to questions about what constitutes illegal torture." That may be, but there's still no indication that the nomination is in any real trouble. What's more likely the case is the president wants the torture debate to end as quickly as possible.
Bush correctly explained in the Heritage Foundation speech that Mukasey has declined to pass judgment on current U.S. interrogation policy because "he doesn't know if the techniques in question are used because the program is classified. Therefore he is in no position to offer an opinion."
Arguably, Mukasey is simply being a prudent lawyer by refusing to hand down a verdict on a classified program he knows little about. The non-answer answer may be infuriating, but it is also typical, as each of the committee members knows. Nominees usually withhold judgment on specific laws or issues to avoid having to recuse themselves in the future when confronted with conflicts in an official capacity.
Chairman Patrick Leahy has given no indication that he will oppose Mukasey's confirmation. In response to written questions following his oral testimony (see our liveblog coverage), Mukasey said that interrogation techniques described by unnamed administration sources "seem over the line or, on a personal basis, repugnant."
Then he added, "Hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.... A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value."
For the chorus of voices calling on Mukasey to say definitively whether waterboarding is torture or not, there are quite a few legal minds out there who understand his predicament. It's difficult to imagine a nominee for the Supreme Court giving a yes-or-no answer to this one based on the no-armchair judging principle that generally guides the confirmation hearings process. Just ask John Roberts and Samuel Alito.
At the same time, the committee is dealing with yet more allegations that the White House has drawn up a shadow system of justice far from the reach of third-party oversight. The waterboarding question is rightly dominating Mukasey's confirmation, which has yet to truly be "held up" by the committee, as Bush alleges. The president surely knows that the written Q&A following committee testimony is pro forma. Committee members submitted the last of their written questions to Mukasey by Oct. 23 and received his responses yesterday, Oct. 30. The committee vote is scheduled for next Tuesday. That's hardly stalling.
"The procedures used in this program are safe; they are lawful and they are necessary," Bush said of the interrogation techniques used by American intelligence officials. "Senior leaders in the House and Senate from both political parties have been briefed on the details of this program. It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on the details of a classified program he has not been briefed on."
That last statement seems true, but Democratic leaders on the House and Senate intelligence committees deny the preceding claim about being informed. The Times report about the CIA's interrogation tactics came courtesy of administration officials who leaked details to reporters. It's difficult to conceive of those revelations taking so long to surface if the Democratic leadership had in fact been kept apprised on the program.
The administration understandably refuses to publicly disclose the details of its interrogation program. In his written testimony, Mukasey offered a preview of how he would go about determining whether a tactic qualified as torture. "If, after being briefed, I determine that a particular technique satisfies the elements of" the statutory definition of torture, "I would conclude that the technique violated the law."
Per U.S. law, a technique intended to cause "severe physical pain or suffering" or "prolonged mental harm resulting from certain specified threats or acts" is torture. It's useful to remind committee members that Mukasey has stated definitively that torture is illegal, counterproductive and cannot be justified by intelligence demands. Once he's fully briefed -- and one would expect the head of the Department of Justice to have access to all those secret memos -- he's promised to make his determinations based on the aforementioned criteria.
Even Democrats on the committee would be hard-pressed to argue that a fully briefed Mukasey is somehow just as bad as Alberto Gonzales. Bush attempted to squeeze the committee by reminding members that the nation is without an attorney general "in a time of war." But a better argument might be that the quicker a new AG is briefed on the program, the sooner lawmakers can get to the bottom of it. It's not one the president is likely to make, and that's all the more reason for the committee to rethink the benefits of holding up Mukasey's confirmation.
Posted at 3:45 PM
Posted to:
Alberto Gonzales, Bush Administration, Congress, Michael Mukasey, President Bush, Senate
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