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October 20, 2007
America Needs A Bad Attorney General
I'm not yet on board with all the No-on-Mukasey sentiment. The Harriet Miers episode taught me that you never judge a president's nominees in a vacuum -- you always think about who will be appointed next if the current nominee falls through. And while Mukasey is bad, we've had -- and could have -- worse. If someone can make a case that the next nominee will be any better (Ted Olson is worse), or that rejecting all nominees and keeping Peter Keisler as Acting Attorney General is a better plan, I'll be happy to change my mind.
If this were the first year of the Bush presidency, I'd think differently. It'd be valuable to send Bush a message that he can't nominate jackasses who claim not to know whether waterboarding is torture. But we're just a year from elections and Bush is close to gone. What matters is making sure that the 2008 elections are free from Gonzales-style interference. If the Attorney General is a GOP fixer (Ted Olson), plotting dirty tricks to help his friend of 25 years, Rudy Giuliani, win the presidency, it'll be a greater blow to the cause of freedom than if Mukasey is permitted a year as AG under a lame-duck president.
October 20, 2007 | Permalink
Comments
Better no attorney general at all than for the Senate to go on record as approving an AG who believes that the president can abduct US citizens off the streets, detain them indefinitely, and torture them at will. You don't think Mukasey believes that? This is what he said when he was asked whether the President can authorize an illegal act:
"If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting someone above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."
So according to Mukasey the President has the power to decide whether his Commander in Chief power overrides legislation, and no one can question his decision.
Mukasey thinks that the president is a despot with unlimited powers. He's willing to turn this country into a dictatorship. A vote to confirm him is a vote to trash the Constitution.
Posted by: bloix | Oct 20, 2007 8:19:23 AM
...under a lame-duck president.
President Bush hasn't appeared all that lame lately.
Posted by: moron identifier | Oct 20, 2007 8:19:51 AM
Although I tend to agree that the options get much worse from here, I don't think we should let that stand in the way of the serious concerns that Mukasey's answers have left. "The best of our bad options" is hardly a great standard to be using, even at this late date, for this failed Presidency. If Mukasey is unacceptable - and I think on torture and Presidential power, he's pretty close to being just that - then we need to say that, and see what happens. Ted Olson is unacceptable, too. And the Acting head is somewhat limited, and Bush's failure to find a permanent one (as he seems to be failing to do far and wide these days), undermines him, not us. We shoudn't lose sight of that, either. I think with Mukasey we were hopeful, and that hope has been dashed. And there's no halfway way to find him acceptable. And certainly no way, if we don't find him acceptable, to see his approval by the Senate as a positive development.
Posted by: weboy | Oct 20, 2007 8:31:26 AM
Sometimes you make the other guys lose because it makes them look weak. While Democrats believe voting for X Y or Z will make the public think they are strong, it won't. You never look strong by doing what someone else tells you to do. You look strong by shoving your enemies face into the mud. Thats what this is about. There will be no practical difference between any AG Bush supports. That's not the point, though.
Posted by: soullite | Oct 20, 2007 8:39:32 AM
Have to agree with soullite on this one. If you have the power, you need to exercise it, even at this stage. And is Peter Keisler really worse than Mukasey or Olson? Why?
Posted by: Meh | Oct 20, 2007 9:21:30 AM
What makes you think that if the Senate were to reject Mukasey that they would accept a Ted Olson? Is it perhaps that, having found some inner reservoir of moral courage heretofore entirely unsuspected, and drained it to resist Mukasey, that they would find themselves utterly spent thereafter? I think the real reason is that, because it is so unimaginable that the Democrats would do anything to really resist this President, we can scarcely conceive of it happening even once. Twice, and we have exceeded the limits of imagination entirely.
Posted by: Andrew | Oct 20, 2007 10:21:43 AM
A Senate that rejected Mukasey would certainly reject Olson. After all only 2 Democrats voted to confirm Olson as solicitor general back in May 2001.
Posted by: KCinDC | Oct 20, 2007 10:44:33 AM
If Hillary does become President, I hope you all will still agree that it is the Senates job to stop whoever the President wants working for them.
Something tells me the shoe maybe on the other foot and your be screaming: Let the President have their people.
Come to think of it, there's probably a whole lot of issues Hillary's going to wish she took a different approach, like filibustering judges.
Posted by: Patton | Oct 20, 2007 11:34:59 AM
Patton,
If Hillary nominates someone who believes that the president has the right to torture (or to define it away), I will join you on the barricades.
Posted by: Andrew | Oct 20, 2007 11:56:51 AM
Dunno Niel,
My understanding of the FISA bill that the Democrats [Reid, Feinstein and other Democratic Quislings] in the Senate will produce will have the AG adjudicating who is to be given corporate protection from lawsuits stemming from the telecoms illegal behavior in support of Republican policies. With the most egregious offences to be dismissed after 07 Nov 2008...it matters who will be AG.
Patton,
Your comment is preposterous and you either know it or are truly ignorant of political affairs. No group has ever filibustered more than the Republicans from 06 onward.
...and it should be clear from above comments, progressives are sick and tired of Congressional Democrats dropping their pants and bending over for Republicans, it's been going on since Hill & Bill came to town...so quit your complaining...we only wish Republicans were the weak kneed Quislings Democrats so clearly are.
Posted by: S Brennan | Oct 20, 2007 12:23:09 PM
Preach on.
Moreover, Mukasey's first day shows that his instincts are to actually follow the law. Also in the same way that Gates found out pretty quickly that Bush couldn't fire him (by letting things slip to the press and then not having to walk them back), Mukasey could probably do the same. The only thing is, he may not be enough of a bureaucratic warrior to know how to do that sort of thing.
The fact that Mukasey cited Justice Jackson ... who said, paraphrasing we should not rule against Korematsu just because its wartime because some day some idiot will try to use this to justify terrible things during peacetime ... is the most heartening thing I've heard from a Bush official or nominee since 9/11.
Posted by: Nicholas Beaudrot | Oct 20, 2007 12:29:08 PM
Neil,
I think the friendship-with-Giuliani criterion is a wash. *Both* Olson and Mukasey are friends of Giuliani. Indeed, maybe it was just me, but it seemed to me that a lot of the initial New York-based coverage of Mukasey's nomination for AG included this fact (e.g., here's the New York Daily News "Bush to name Giuliani ally as attorney general")
Granted, Ted Olson, especially after Florida in 2000, has a reputation as all-out partisan election fixer. But the point stands: both Olson and Mukasey are potential Giulian partisans.
Posted by: Bill Kaminsky | Oct 20, 2007 12:45:16 PM
"""Patton,
If Hillary nominates someone who believes that the president has the right to torture """
Everyone believes that the President as CIC does not just have that right he has the responsibility to torture the enemies of this country if the circumstances warrant it.
Whatever happened to the Democrat Party? The one that believed in using flamethrowers to torture Japanese soldiers out of the hiding caves? That believed in torturing Japanese civilians through radiation poisoning to get them to surrender. And what about the starvation of Iraqi children that Clinton/Gore perpetrated, how was tht any different then if Bush didn't feed prisoners? And it goes on and on.
What about the psychological torture Clinton waged against the Branch Davidians, are own citizens?? They were exposed to sleep deprivation, loud noises, cut off of electrivity, air conditioning and on and on? Did any liberal complain about that torture? No, you cheered Clitnon on, the bastards got what they deserve was what the left said.
Let's just say Hillary captures a terrorist just after he planted a Nuclear bomb in San Francisco. He swallowed the only keyed that will stop the Nuclear explosion. The bomb goes off in 5 minutes. Does President Hillary order the torture of the prisoner to cut his stomach open causing him severe pain, anguish and distress or allow a couple million Americans to die.
Hillary would do it herself with a pen knife.
The idea that countries/people will not torture when it comes to their survival is just stupid.
Let's say your a squad leader in Iraq and your mission is to secure a street that was taken over by Al Queda who set up booby traps, sniper locations, etc. You capture the leader in a fire fight, he's wounded to the point he thinks he may die and he's very dehyrated.
He also looks strikingly like Little Dick Turbin.
You know you have a medical team on the way to treat his injuries, he doesn't. You tell him he won't get any medical treatment or water until he reveals the locations of his booby traps (This would be considered psychological torture to let the guy think he's going to bleed to death). You dress one of your guys as a corpsmen to convince him he doesn't have long to live. You tell him you're going to bury him right their and not even tell his family where he is..more pschological torture...
He gives up the locations under your psychological torture and you save your men from walking into ambushes. The medics arrive 5 minutes later and the terrorist realizes you tricked him and used psychological torture to extract information. he subsequently calls the ACLU to commiserate and see if he can sue.
Of course Durbin, Murtha, Reid, Stark etc. will condemn you to hell for being so mean, and won't say anything bad about the terrorists planned abumshes, but you sleep well at night knowing you saved your men.
Posted by: Patton | Oct 20, 2007 1:14:38 PM
I just heard Keisler speak yesterday and he made a point of quoting James Comey several times. Not Gonzales, not Bush, not Clarence Thomas or anyone else, but Jim Comey, as if to say "I know who was on the right side."
Posted by: SteveH | Oct 20, 2007 1:39:20 PM
Holy shit.
Posted by: mattstan | Oct 20, 2007 1:39:21 PM
bloix, "No attorney general at all" isn't an option. Then Keisler keeps it without having to go through confirmation.
Bill, while I agree with you that both are Giuliani supporters, Olson has a much deeper history of being a partisan warrior, from taking Scaife money to dig up dirt on the Clintons during the Arkansas Project days to the Bush/Gore Florida fight.
SteveH has the only anti-Mukasey comment that really matters here.
Posted by: Neil the Ethical Werewolf | Oct 20, 2007 2:31:13 PM
If the Senate confirms an AG nominee who can't state flat out that waterboarding is torture, and who also claims the president has the right to violate statute law, then Congress and the Democratic Party have signed on to the Bush administration's de facto legalization of what we ALL know is torture, and they also are giving consent to the Cheney concept of a 'unitary executive' who is above the law.
This isn't complex stuff. It's really very simple. You're either for the Constitution and the rule of law, or you're not. Bush is not. Cheney is not. Mukasey is not.
Are the Democrats?
Posted by: JoyceH | Oct 20, 2007 3:00:40 PM
... or maybe not. Here's Paul Kiel of TPMMuckraker on Keisler:
Among the strikes against Keisler for Democrats was the fact that he's a co-founder of the conservative Federalist Society. He also "oversaw the Bush administration's lengthy legal fight over the rights of prisoners at Guantanamo Bay."In March, Keisler, who has been serving as Assistant Attorney General for the Civil Division and previously served as Associate Counsel to President Reagan, made an appearance on The Washington Post's front page. Keisler was one of the three political appointees fingered by a career prosecutor who claimed they repeatedly ordered her to take steps that weakened the government's racketeering case against tobacco companies.
This guy stays AG if we don't put in a replacement.
Confirm Mukasey now.
Posted by: Neil the Ethical Werewolf | Oct 20, 2007 3:24:14 PM
"This guy stays AG if we don't put in a replacement."
The difference is that he isn't AG with the concurrence of the Congress and the Democratic Party.
Confirm Mukasey, and both major parties and two branches of government have agreed to turn a blind eye to government-sponsored torture and presidential lawbreaking.
I used to think we just had to hold on till 2009, and all the horrors and excesses of this administration would be rolled back and we'd get our country back again.
I'm not so sure about that anymore.
Posted by: JoyceH | Oct 20, 2007 3:29:34 PM
"""and who also claims the President has the right to violate statute law""
The President CAN violate statute law if it violates his Presidential Powers. Then someone takes him to court and the court decides whether the President was wrong or the law was unconstitutional. its not rocket science. Bill Clinton tested it dozens of times trying to cover up his sodomizing an intern.
If Congress passed a law and some nutty President (Carter...) signed it, stating that the President has to get approval of the Governor of Maine to give orders to the military, clearly the President could openly and brazenly violate that law, because as Commander In Chief the law is clearly unconstitutional and violates his role as head of the armed forces.
The ACLU would most likely sue saying Congress wasn't completely stupid when it passed the law, please burden the President so he can't protect the country.
And the Supremes would tell them to all go pound sand..politely.
Posted by: Patton | Oct 20, 2007 3:51:26 PM
Have any of you stretched the truth to get a job? We don't know which was Mukasey might be stretching things: to the left to garner support from the Democrats, or to the right to avoid the Republicans thinking he'll attempt to follow the constitution too closely. He's probably stretching things both ways. You're already living with an administration ready to use torture when it sees fit, ready to violate habeas corpus, and what will change if you stand by your principles? There are occasions when principles need to be leavened with pragmatism. Are there things more important than vetting Bushco nominee after Bushco nominee? Decide if you can get a better nominee by rejecting Mukasey. Or decide if you'd rather have the interim AG over any nominee. You won't like any Bushco nominee. Which one stinks the least? Mukasey seems to me like a reasonable compromise until Bush is replaced. Not perfect, but as good as you're going to get.
Posted by: MrX | Oct 20, 2007 3:54:02 PM
Hillary of course, being quite smart, already is on record saying she, as President, will be able to toture people. So when the left is so, so surprised that she upholds torture as President she can point to this quote and say, you guys knew I loved torture when you voted for me:
But at yesterday's Daily News editorial board meeting, it emerged that she's [Hillary] not actually against torture in all instances, and that her dispute with McCain and Bush is largely procedural.
She was asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, and said that there is a place for what she called "severity," in a conversation that included mentioning waterboarding, hypothermia, and other techniques commonly described as torture.
Hillary on torture: "I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded. "Again, I think the President has to take responsibilty. There has to be some check and balance, some reporting. I don't mind if it’s reporting in a top secret context. But that shouldn’t be the tail that wags the dog, that should be the exception to the rule."
By the way, she also likes to listen into other peoples private phone conversations without their consent...another handy piece of information...
Posted by: Patton | Oct 20, 2007 3:59:44 PM
The Democrats will have to pay a political price if they vote to confirm Mukasey, now that he has declared that he believes that the president may violate the law. Same if they end up passing a FISA law that does not require individual warrants, or if they fail to promptly re-instate habeas corpus protections. There is a sizable constituency voting on these constitutional issues, comprised both of liberal Democrats and libertarian-minded Republicans who are sick of the Bush administration abuses and want to restore constitutional balances. Showing any willingness to compromise on these issues turns the Democratic party into a non-option for this voting block, and would be an embarrassing and political miscalculation that would harm Democratic electoral prospects.
Posted by: MC | Oct 20, 2007 4:21:51 PM
"You won't like any Bushco nominee. Which one stinks the least? Mukasey seems to me like a reasonable compromise until Bush is replaced. Not perfect, but as good as you're going to get."
Here's what you don't seem to understand. The issue is NOT Mukasey. It's what we as a nation can tolerate. I don't care which choir he's preaching to, or which direction he's weasel-wording. If he can't say that waterboarding is torture, and he gets confirmed, the Congress has confirmed torture.
In which case, you're not going to like what this nation is going to look like in ten or twenty years. There has never in history been such a thing as a nation that 'only tortures a little'.
Posted by: JoyceH | Oct 20, 2007 4:26:57 PM
Can you tolerate Peter Keisler, Joyce? As far as I can tell, he's even worse, and he keeps the AG's seat until a replacement is confirmed.
Posted by: Neil the Ethical Werewolf | Oct 20, 2007 4:29:11 PM
