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October 20, 2007

Peter Keisler Is Worse

By Neil the Ethical Werewolf

As I outlined earlier, the real question in voting for or against Mukasey's confirmation is: if we don't confirm him, who becomes Attorney General?  The most likely answer, assuming that Bush keeps pitching bad nominees and Democrats keep rejecting them, is that Peter Keisler continues to rule as Acting Attorney General. So who is Peter Keisler?

He's a co-founder of the hyper-conservative Federalist Society whom Robert Bork regarded as one of his favorite clerks. He oversaw the administration's fight against habeas corpus for people in Guantanamo, and he doesn't think that the government should have to reveal whether or not it is engaging in warrantless surveillance.  Unlike Mukasey, I haven't seen any evidence that he's ever said no to the Bush Administration on anything.  And like Gonzales, he has a history of interfering with the work of US Attorneys to serve right-wing political interests.  From a very well-researched Kos diary:

Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers.

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

Eubanks, who served for 22 years as a lawyer at Justice, said three political appointees were responsible for the last-minute shifts in the government's tobacco case in June 2005: then-Associate Attorney General Robert D. McCallum, then-Assistant Attorney General Peter Keisler and Keisler's deputy at the time, Dan Meron.

However we vote on Mukasey, we're guaranteed to have an Attorney General who believes the president is above the law.  The question is whether we get an AG who is also willing to subvert his office for political ends, possibly including dirty tricks that will perpetuate Republican rule of the country in the November 2008 elections.  The only way to get out of this hellish situation where Republicans can force these terrible choices upon us is to win those elections.  Mukasey, at least, has enough principle to say no to the administration once in a blue moon, and as Dahlia Lithwick has observed, Mukasey's not as tightly connected to the GOP machine, while Keisler runs around subverting federal cases for the tobacco industry's benefit.  Which suggests that Mukasey has less of a motivation to play dirty tricks in 2008. 

This brings me to an argument from commenter JoyceH in the previous post, when I asked her about whether she could tolerate Keisler as attorney general:

Neil, no I can't 'tolerate' him - the difference is that the people who claim to be for restoring the rule of law did not vote for him.

There are a lot of things this administration has done that I find intolerable. But what I find discouraging almost to the point of despair is when the people who should be standing up to the intolerable rubber-stamp it because they can't stop it.

Even if you can't stop something, that doesn't mean you have to sign on to it and go on record saying that it's okay.

There's a bunch of times when I've felt as she does.  The difference between this situation and those is that by confirming Mukasey, it looks like Democrats will actually generate a better outcome.  This wasn't the case in any of the long line of Democratic capitulations starting with the Iraq War.  In this case, it's not about 'not looking partisan' or being timid -- it's about voting to replace a terrible Acting Attorney General with a bad Attorney General, which is a genuine (if meager) gain.  There are, as far as I can tell, no other options. 

And if you want to see a show of strength, we had it in this case, but it happened before anyone was paying attention.  Look what Harry Reid told Bush that if he picked his favored nominee, career GOP fixer Ted Olson:

"Ted Olson will not be confirmed," Sen. Harry M. Reid (D-Nev.) said in a statement. "I intend to do everything I can to prevent him from being confirmed as the next attorney general."

Bush caved and nominated Mukasey instead. 

Probably unlike Joyce, I'm an old-fashioned consequentialist, and I think that the way to determine whether you did the right action is to look at the consequences and see what they add up to.  You don't worry about making statements or drawing lines in the sand, unless you can see that those actually generate useful consequences.  And I don't see that here.  When your country is going to hell, you grab every lever of power you can to turn it around, and that's what replacing Keisler with Mukasey will do.

October 20, 2007 | Permalink


"by confirming Mukasey, it looks like Democrats will actually generate a better outcome."

I'm curious to know what you base that on.

Remember that on day one of his hearings, Mukasey was quite clear about the illegality of torture and sounded like a breath of fresh air. The next day was a totally different story.

How can you possibly explain his about face, unless between days one and two the Bush administration advised him of 'interrogation' techniques that they intended to keep on using that fall outside the parameters of his day one testimony?

From that point, he could either stick to the principles he'd articulated the previous day, or he could 'adjust' to what the administration wanted. And he adjusted.

As AG, would he cave to the Bush administration when they wanted to be told that lawbreaking and war crimes were actually legal? Based on the evidence, he already has.

Posted by: JoyceH | Oct 20, 2007 6:24:08 PM

"I intend to do everything I can to prevent him from being confirmed as the next attorney general."

Bush caved and nominated Mukasey instead.

That was a close one, because Harry Reid has shown time and time again that he has about as much intestinal fortitude as a sick 5-year-old with a severe gag reflex and a raw hamburger diet.

I'm with JoyceH here. There's no actual evidence that Murkasy will produce different outcomes than anyone else. If he really does stand up to Bush, then they'll just go around him. What's he going to do? Threaten to tattle? Everyone already knows that the Bush Administration does more illegal and traitorous things before 9am than most despotic regimes accomplish all day, and no one is doing anything about it.

If we had Democrats in Congress worth anything, I'd like to see them just refuse nominee after nominee as part of a comprehensive strategy of opposing the Bush Administration on everything. But they're worthless and will ask "hard questions" before inevitably confirming the nomination.

I'm not a "pox on both houses" guy like akaison and soullite, but I certainly understand their reasoning.

Posted by: Stephen | Oct 20, 2007 6:46:10 PM

Even if some undesirable person does become the AG in case the current nominee is not confirmed, the Dems will still have the oversight power to restrain him. Of course if they do not have the fortitude to exercise that power, it does not matter who the AG is.

I say vote on principles, not cynically on the basis of some clever game theoretic calculations to determine the costs/benefits of various strategies.

Posted by: gregor | Oct 20, 2007 6:52:13 PM

You don't worry about making statements or drawing lines in the sand, unless you can see that those actually generate useful consequences.

Given that politics and law is a game played among human beings, subjective signals sent between players aren't consequence-free. The precedents set today will change the bounds of acceptability in tomorrow's field of play. The Bush Administration will one day end, and today's statements and lines in the sand may decide whether we see it as a brief aberration or the beginning of a new age of lawlessness.

It's a hard case. You can contend that that subjective signals are unlikely to make a real difference. Others can contend that that the difference between Mukasey and Keisler are also unlikely to pay off. It could even be worse--Mukasey's supposed integrity might put him in a better spot to argue for keeping the Protect America act and other laws in place.

Posted by: Consumatopia | Oct 20, 2007 6:57:39 PM

Another vote for voting no from a consequentialist. Admittedly an uninformed vote - this post convinced me that Keisler is worse than Mukasey, but I have no idea how much. Still, the benefits of Winning, even if Winning is actually a slight loss, are pretty large. The more we beat Republicans on relatively unimportant issues, the more confidence our reps will have to stand up to them on the big ones.

Posted by: dr. zeuss | Oct 20, 2007 7:17:48 PM

To sum up, here's the case for Mukasey: Any Bush AG will have screwed-up views on the Constitutional issues, but Mukasey is our best shot at keeping the US Attorney's office from becoming a partisan hack shop like Gonzales was trying to make it. Keisler has shown his willingness to interfere with the neutral administration of justice, while Mukasey hasn't, and Mukasey doesn't have the partisan hack CV that Keisler does. Given that we don't want to be up against dirty tricks going into the election (which, Stephen, we may not be able to suss out until it's too late) we want Mukasey instead of Keisler.

Posted by: Neil the Ethical Werewolf | Oct 20, 2007 8:25:52 PM

I should also add: If Sheldon Whitehouse wants to vote against Mukasey, great -- he probably should. And if a number of Democratic Senators want to get Sheldon's back, that's good too. There's no reason to make this a unanimous yes vote. However, Harry Reid shouldn't pull any strings to hold up the nomination, or try to get the caucus unified against it.

Posted by: Neil the Ethical Werewolf | Oct 20, 2007 8:35:17 PM


Given your assumptions, your assessment is sound. However, I don't share your optimism that Mukasy's actions in the past will have any bearing upon his performance as AG.

Anyway, even if Mukasy is an honorable man, John Tanner is the Voting Rights chief, and it doesn't seem too far-fetched to me for the WH to make it clear to Tanner that they want lots and lots of shenanigans in the 08 election.

The WH can make Mukasy or anyone else as relevant or irrelevant as they want. Before the Bush Administration that wouldn't have been a concern, because even with all the scoundrels we've had in the WH in the past, no one has built layers of deceit upon foundations of trickery the way Bush has.

Frank Herbert would say that everything Bush does is a feint within a feint within a feint. If we don't recognize that we will always lose, and we don't have a genetic superbeing around to cut through all the crap.

Posted by: Stephen | Oct 20, 2007 9:34:25 PM

I didn't agree with your reasoning and I found your self aggrandizement a bit much.

"I'm an old-fashioned consequentialist, and I think that the way to determine whether you did the right action is to look at the consequences and see what they add up to."

That seems far too much a variation on "serious" and "reasonable" to me.

First, the obvious. You point out what a "knee-on-the-throat" type of character Peter Keisler is. Then you ignore what just happened in the hearings. That is, Mukasey made some fairly, though vaguely, amenable statements the first day and then he showed up the next day sounding like a Stepford wife repeating Bush group double talk that either denied or defended suspected and known government actions. The man said firmly, repeatedly and bluntly that the government doesn't "torture." Then he denied having knowledge of the government's actions or their nature and therefore couldn't and refused to characterize them.

Mukasey is a worm. Believing that he represents some better choice among evils is like believing the tooth fairy will come after you've had your teeth knocked out by thugs with baseball bats. If Mukasey shows the slightest hint of a spine, the barest of inclination towards defending the Constitution, he'll be given a basement office and a name plate and left to himself. Keisler runs the operation already, or someone else that pulls Keisler's strings. Mukasey is a front with a now demonstrated willingness to do that fronting job.

The only hope for justice with someone like Mukasey is that he might eventually get so humiliated being on his knees all the time that he might carry a wire and nod "yes" while taping the words of the White House thugs. I don't think even that would work because, unlike Alberto Gonzales, the White House probably will use buffers when dealing with an unknown quantity like Mukasey. That's Keisler's job.

Looking at the Ashcroft, Comey, Goldsmith team, my impression of their joint "nobility" is that Goldsmith somehow happened on some docs that showed they were being propped up as the fall guys on the off chance that the refried beans hit the fan. They were the "experts" giving the OK on the wiretapping and what ever else was going on. When Goldsmith saw the docs he also saw the light and told Comey and Ashcroft and suddenly those champions of civil liberties got all puffy chested in defense of the Constitution. And .. out the door they quickly ran, heroes that they are.

Mukasey walks into that barn of pig manure and goes glassy eyed in a day. That's who you think is the better choice.

The problem with OKing Mukasey after his behavior in the hearings is that it's like the "gang of 14" "compromise" on the "nuclear option" on filibuster. What the "gang" did was legitimize the reprehensible intimidation of the Republican party and at the same time remove the use of filibuster for the Democrat (sic) party for any but the most extreme of circumstances - while at the same time allowing true extremist judges thereby redefining "extreme" into Stephen King's domain. OKing Mukasey is OKing his moronic defense of malevolent actions by a malevolent government and by extension, those actions and that government. At least AshComith left.

I don't like Kevin Drum's suggestion of abstaining either. That's a cop out. You don't stand by when the Constitution (and your rights in defense against a demonstrated abusive and murderous government) is being pissed on and say it was some magical urine that you couldn't deflect and so you just shut up and watched.

Posted by: Amos Anan | Oct 20, 2007 10:25:58 PM

Given that we don't want to be up against dirty tricks going into the election (which, Stephen, we may not be able to suss out until it's too late) we want Mukasey instead of Keisler.

I'm in way over my head here, but I would have thought that punishing election fraud is more of an after-the-fact thing--in which case, it would be the next AG that matters for fraud in this election, not the current one. Since the election determines the next AG that's a bit hairy, but that's how it is.

Posted by: Consumatopia | Oct 20, 2007 10:37:56 PM

If ever there were a case for zero tolerance, appointing law enforcement officials who believe the president doesn't have to obey the law and the US is free to torture (as long as they don't call it torture).
Our president is a criminal who actively seeks to undermine our system of laws. I want my elected representatives to fight him tooth and nail, or, at the very, very least, to stop enabling him-- and that's what a vote for confirmation is. The congress needs to remember that they are the primary decision-making branch of government, and stop acquiescing out of raw impotence.

Posted by: Anthony Damiani | Oct 20, 2007 11:31:09 PM

I take it you all now will admit that Janet Reno was unfit to be AG, afterall, she and Bill Clinton gave us the REDITION program. She is also famed for the torture of the Branch Davidians a move the left defended.
The sleep deprivation, the load noises, the denial of food, water, the turning off of air conditioning, the use of those techniques on actual children. I love how the left get all moral when they are no longer in charge and so enoyed brutalizing our citizens.

I don't remeber Dick Turbin compaining about the nazi, Pol Pot, Stalin tactics used on actual citizens.
To be fare he probably feared they'd pull his FBI file.

Posted by: Patton | Oct 21, 2007 6:02:34 AM

Calm down Anthony Damiani, how could the Democrats and the left oppose an Attorney general who believes more in rights of people then the entire Clinton adminstration did?

Just look at the facts:

1. Clinton pilfered over 500 FBI files on Republicans.
2. Hillary Clinton eavesdropped on opponents telephone calls.
3. The Clinton adminstration came up with the Redition program.
4. The Clinton adminstration believed Clinton didn't even need a warrant to seach an Americans home.
Clinton Deputy Attorney General Jamie Gorelick testified before the House Intelligence Committee in July 1994. Gorelick told lawmakers that the president had the authority to order physical searches—break-ins—for national-security reasons without having to get a warrant from anyone.
5. The Clinton adminstration went to court to remove the Executive office of the President from coverage of the Privacy Act.
6. The Clinton adminstration violated the rights of Linda Tripp by releasing her personnel file.
7. A federal judge ruled that President Bill Clinton "committed a criminal violation" of the privacy rights of Kathleen Willey.

I could go on, but come on. Noone has found a single instance where Bush even came close to violating an American citizens rights and the Clintons did it for sport as part of routine business. And the left defended it till they were blew in the face.

Posted by: Patton | Oct 21, 2007 8:31:17 AM

Thanks for answering the question, Neil.

Posted by: Meh | Oct 21, 2007 9:20:24 AM

Patton, I voted for Bush in 2000, and a some of the stuff you mentioned kind of pissed me off, but it's just not comparable to how things are under Bush. The Branch Davidian stuff wasn't an interrogation of people in our custody for information--it was an ultimately flawed attempt to capture people who were ultimately willing to burn their own kids. The Clinton rendition program was also bad, but restrictions on destination country were in place to prevent that were removed under Bush. The FBI files were probably a mistake (whereas Bush seems proud of every extra bit of information he collects), and the Hillary eavesdropping thing is almost certainly a made up unsourced rumor.

It's not that the Clintons were good, and I definitely plant to vote against her, It's all nothing compared to the numerous innocent people we now know have been tortured under Bush.

Posted by: Consumatopia | Oct 21, 2007 9:51:42 AM

Can you truly be that gullible? I see you immediately went to the 'blame the victim' excuse.

But you aren't willing to blame the terrorist..hmm

And the Hillary campaign is a sourced report from a person inside the Clinton adminstration at the time. Hillary has NOT, REPEAT NOT denied the report.

Posted by: Patton | Oct 21, 2007 11:07:15 AM

So when all the terrorists at GITMO die in a terrible fire, I am sure you all will blame the terrorists and not question the adminstrations tactics...

Posted by: Patton | Oct 21, 2007 11:12:39 AM

It's fair to question Reno's tactics at Waco from a law enforcement/hostage negotiation point of view, it just has absolutely nothing to do with torture of people in our custody.

If it's sourced, then give me the name of the official inside the Clinton Administration. Hillary's campaign denied the credibility of the entire book that rumor was started in. Repeat it in capital letters as much as you want, you're just wrong.

Posted by: Consumatopia | Oct 21, 2007 1:08:34 PM

I understand Consumatopia, you believe in torture of American citizens, just not foriegn terrorists who are trying to destroy us.

I was not aware of hostages at Waco, someday I'd like to read their account of their dramatic rescue.
Do they mention that the police could have arrested Koresk any time because he went to town every week for groceries and that the Justice Department called the press to tell them they were going to have a good story for them...

I guess the Hillary wiretapping opponents sure has hit a nerve. Everyone insists that it couldn't possibly be true, not our great Hillary. But they believe every ridiculous anonymous sourced story about Bush.

And your simply wrong about what Hillarys campaign has said...THEY HAVE COMPLETELY DODGED GIVING A STRAIGHT ANSWER:

For the past 5 months her campaign has not denied the allegation.
"We don't comment on books that are utter and complete failures," Clinton's Senate spokesman.

So rather then say whether its true or not, or even deny everything in the book, they simply attack the book for having low sales numbers.

Posted by: Patton | Oct 21, 2007 2:41:40 PM

"""nothing to do with torture of people in our custody""

Ohh, I was simply not aware that the ban on torture only included people you have in custody. That's a new concept which I guess the Democrats can add to the legislation. Perhaps you can get the UN to add it too, because they don't seem to say torture is OK for people not in custody. They seem to think that doesn't matter so much. I'll check the ACLU, maybe I misunderstood their ban as well.

Posted by: Patton | Oct 21, 2007 2:47:45 PM

Here's more on Clintons hypocrisy:

In their book about Clinton's rise to power, Her Way, Don Van Natta Jr., an investigative reporter at The New York Times, and Jeff Gerth, who spent 30 years as an investigative reporter at the paper, wrote: "Hillary's defense activities ranged from the inspirational to the microscopic to the down and dirty. She received memos about the status of various press inquiries; she vetted senior campaign aides; and she listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. ...

"Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

Gerth told The Hill that he learned of the incident in 2006 when he interviewed a former campaign aide present at the tape playing. He has not revealed the aide's identity. Clinton's campaign has not disputed any facts reported in the final version of his book, which became public this spring, he said. ... """

Posted by: Patton | Oct 21, 2007 2:55:27 PM

Ohh, I was simply not aware that the ban on torture only included people you have in custody.

That's kind of the whole point. You can drop bombs and shoot at people on the other side of the front, but you have to treat your prisoners with respect. There's a difference between what you do to capture someone and what you do with them once they are captured. Yes, that difference is reflected in all UN and ACLU documents you will ever find. If you can't grasp that, you don't know anything about torture, nor do you actually care about torture or government abuse at all--Republicans like myself who cared about that at all switched sides a long time ago.

Posted by: Consumatopia | Oct 21, 2007 3:35:09 PM


What a strange appeal to team politics you make, as though I ought to immediately rush to the defense of Bill Clinton! You pretend that Clinton's sins somehow make Bush's crimes OK-- or that it's now somehow an argument about who was worse. That's just silly.

I will, however, take issue with the following: "Noone has found a single instance where Bush even came close to violating an American citizens rights."

Jose Padilla?
Unwarranted wiretaps?
National Security Letters?

Posted by: Anthony Damiani | Oct 21, 2007 5:43:01 PM

It's so disappointing to see the number of comments, expect a rousing debate, and then find once again that 70% of them are Patton vomiting all over the computer screen about the Clintons.

I've never understood why I should condone a policy of Bush's because Clinton did it. Nor do I understand why what Clinton did should matter so damn much. What's next? A defense of the Bush Administration's abstinence-only policy because of what Chester A. Arthur once said?

Posted by: Stephen | Oct 21, 2007 6:22:41 PM

And your simply wrong about what Hillarys campaign has said...THEY HAVE COMPLETELY DODGED GIVING A STRAIGHT ANSWER:

Repeat it in capital letters as many times as you want, you're simply wrong.

From the October 16 edition of Fox News' Special Report with Brit Hume:

ANGLE: There is no allegation Senator Clinton ordered the wiretapping, only that she knowingly listened to it.

GERTH [audio clip]: The person who told us about this was present at the playing of the tape recording.

ANGLE: A Clinton spokesman had earlier dismissed the account of the eavesdropping, saying they wouldn't comment on a failed book, but stopped short of denying it. Today, however, the Clinton campaign decided to go further and flatly denied the account. Communications director Howard Wolfson said, "This story is categorically untrue."

On the plus side, the second time was even more hilarious than the first.

Posted by: Consumatopia | Oct 21, 2007 6:34:20 PM

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