If Mukasey goes down, which party loses?

If Mukasey goes down, which party loses?

If Mukasey goes down, which party loses?

The law, lawyers, and the court.
Oct. 31 2007 12:44 PM

Attorney General Chess

If Mukasey is knocked out, which party loses?

Michael Mukasey. Click image to expand.
Michael Mukasey

Courtesy of Michael Mukasey, Washington woke up to a rare moment of truth this morning. The reckoning is all the more remarkable for being unexpected and unsought. When President Bush nominated Mukasey for attorney general, he offered conciliation by picking a retired judge with no national pull or partisan reputation. When the Senate got ready to hear Mukasey's testimony, Democrats practically jumped up and down in their enthusiasm to confirm him. And even after Mukasey riled the Senate by refusing to call waterboarding illegal and insisting on an expansive theory of executive powers, both sides still wanted to get to yes. As the mood soured this week, White House lawyers called Senate staffers to consult over what Mukasey could say to mollify the Democrats. The Washington Post suggested this face-saving route to confirmation.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Maybe some Democrats will yet find a way to make their peace with Mukasey, because this is still a fight they don't want to have. But he's sure not giving them much to work with, as Barack Obama, Hillary Clinton, John Edwards, and Joe Biden have each pointed out in announcing their opposition. Mukasey won't renounce waterboarding or declare it illegal, he said in a letter to the Senate released last night (here's the short version), because even though "as described" it's "repugnant to me," the whole discussion remains a "hypothetical," and "hypotheticals are different from real life."

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Of course, laws and rules are all about hypotheticals, in the sense that Mukasey is using the word. "Thou shalt not shoot your neighbor in the face" isn't contextual or nuanced. It's a statement of what nobody gets to do. Mukasey's refusal to put waterboarding in that category means that the Bush administration isn't ready to declare this form of torture clearly and finally off limits. If he's confirmed as attorney general, and finally reads all the memos he has diligently promised to review, it's possible that Mukasey will turn out to be the guy who changes all of that. But there's little or nothing in his record to suggest such a conversion, and a lot more that points to the opposite. Which is why the Democrats now have a real problem.

Here's the Mukasey dodge: He says he won't comment on coercive interrogation techniques or Department of Justice legal memos that he hasn't been briefed on. The key part of the DoJ analysis is already public; yet still, Mukasey has a three-part high-minded justification. 1) He "would not want any uninformed statement" of his to threaten field interrogators with "personal legal jeopardy." 2) He doesn't want to give terrorists "a window" into American interrogation operations. These rationales don't stand up well to scrutiny: According to the inestimable Marty Lederman on Balkinization, the threat of prosecution to interrogators who relied on DoJ opinions is vanishingly small (DoJ itself, after all, would have to prosecute). And we've told the terrorists plenty else about what we do and don't do. More to the point, really, is Mukasey's last justification: 3) If he renounces waterboarding, he could inch close to techniques "that some may find analogous or comparable" to it. Never mind that the government says it hasn't actually simulated the drowning of anyone since 2005. Maybe we're still doing something a lot like it. Or maybe in the future we'll come up with some brilliant new variation.

The smarter move Mukasey makes is to point out that while Congress has barred the military from using waterboarding in the anti-torture provisions John McCain wrote for the Detainee Treatment Act, lawmakers have failed to apply the same strictures to the CIA in passing the DTA and then the Military Commissions Act. As Mukasey writes, "Congress made the judgment that other agencies, particularly the CIA, should be able to employ interrogation techniques not specifically authorized in the Army Field Manual," which explicitly bars waterboarding and a bunch of other coercive tactics. This is his best argument. If Congress wants waterboarding to be categorically illegal, lawmakers can pass a statute making it so for everyone, rather than relying on a nominee seeking confirmation to tell them what they want to hear.

But if Congress starts banning specific techniques, won't that suggest anything it doesn't list is OK? A bigger problem than the statutory gaps is the DoJ exploitation of those holes to turn the anti-torture laws into Swiss cheese. Whatever its shortcomings, Congress did bar tactics intended to inflict "severe physical suffering." How could that not cover waterboarding, which has been used to cause pain, anguish, and panic for centuries, as Dahlia Lithwick and Phil Carter point out in this prescient piece? Again, Marty Lederman has this figured out: The DoJ declared in a still-binding 2004 memo that to be torture, severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." Waterboarding is brief, ergo it's not torture. This analysis has nothing to do with the words Congress put in the statute, but that doesn't seem to bother the government lawyers who came up with it.

One more lawyerly Mukasey move: He promotes the interpretation that an interrogation tactic is cruel, inhuman, and degrading—and therefore barred by statute—only if it "shocks the conscience," as the Supreme Court has defined that term. This is a crutch the government has loved to lean on. In the court's words, which Mukasey dutifully quotes, the standard "demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking" (his italics). Which brings us back to where we started: It's all about context and nuance. Waterboarding might be bad news most of the time. But Mukasey can't or won't say that's the case in advance or in general. If the Senate confirms him, it will tell the world that the American attorney general hasn't made up his mind about a form of torture that's been reviled for centuries and consistently prosecuted in American courts.

There's more to mine in Mukasey's answers, which in their long version run over 172 pages. Senators who have railed against the administration's efforts to turn the executive into the ever more dominant branch should continue to worry about his stance on the president's power to order surveillance. But it's Mukasey's legalistic hedges about waterboarding that are easiest to rally around, and that should distress Republicans like McCain and Arlen Specter just as much as Democrats.

We'll find out soon enough. Moments of truth by definition don't last long, and the Senate judiciary committee this morning scheduled a debate and vote on Mukasey for Nov. 6. If the administration is taking a gamble on the outcome, it has also neatly lowered the stakes. The acting attorney general, Peter Keisler, is a founder of the Federalist Society and a dreamboat for movement conservatives. If Mukasey goes down, Keisler stays in. Do the Democrats want him to decide which allegations of election-law violations to prosecute in 2008? There's another ramification, too: Keisler is up for a seat on the U.S. Court of Appeals for the D.C. Circuit, and it could be easier for him to win confirmation from the helm of the DoJ. The administration has set up the vote on Mukasey to look a lot like this: Heads, we win; tails, you lose.