Not the Right Choice

Mukasey's Confirmation Hearings Raise Serious Concerns

Mark Agrast on why Mukasey is not the right choice for attorney general.

The confirmation hearings for attorney general nominee Michael B. Mukasey have raised serious concerns about the extent to which he would uphold the rule of law and restore the integrity of the justice system. He acknowledged that the president is not above the law, but his commitment to that principle was called into question by his statements suggesting that the president has the authority to decline to obey the law “to defend the country.” He acknowledged that the president may not order acts of torture, yet repeatedly declined to tell the Judiciary Committee whether he considers extremely coercive interrogation practices such as “waterboarding” to be torture or not. Given these concerns, we have concluded that we cannot support his confirmation.

We have come to this position reluctantly, for when President Bush nominated Judge Mukasey, we expressed cautious optimism regarding his selection. He had been a tough-minded judge with a reputation for probity and independence, and we hoped that his confirmation hearings would show him to be a person who understood, as his predecessor did not, that it is his responsibility to help the president to faithfully execute the laws, not evade them.

We were therefore surprised and concerned when Judge Mukasey asserted that the president may refuse to obey the law under his authority “to defend the country”—a power found nowhere in the Constitution. And we found more troubling still his refusal to tell the committee whether he considers it lawful for government officials to authorize the use of waterboarding—a form of torture so notorious that its use has been prosecuted as a war crime by the United States in past conflicts, is categorically condemned as torture by the Judge Advocates General of all four branches of the Armed Forces, and is expressly prohibited by the Army Field Manual.

Following the hearings, Judge Mukasey was given the opportunity to clarify his views on these matters by responding to written questions. Yesterday he submitted his responses to the committee. They are deeply disappointing. While he provides some clarification as to what he meant by "defending the country," his views on the scope of the president’s power to disregard laws he considers unconstitutional remain disturbingly opaque. And he clarifies nothing about his views on the lawfulness of waterboarding. Instead, he attempts to justify his refusal to answer the question.

Judge Mukasey offers three reasons for his refusal: first, that he does not know whether or under what circumstances waterboarding or similar practices are being employed and therefore regards the question as “hypothetical”; second, that he does not want his “uninformed” statements on the legality of such practices to cause interrogators to feel that they are in “personal legal jeopardy”; and third, that he would not want any statement on the legality of waterboarding to aid our enemies by letting them know what techniques we do or do not employ.

These reasons are both unconvincing and contradictory. First, the question of waterboarding is hardly hypothetical. Regardless of whether the practice is currently being used by agents of the U.S. government, instances of its use have been well-documented. It is not necessary for Judge Mukasey to be briefed on the current activities of the CIA to explain his views about whether waterboarding constitutes torture and whether it is lawful.

Second, Judge Mukasey’s desire to shield those who may have engaged in the practice from legal culpability is misplaced. It is the job of the attorney general not to pass judgment on the conduct of particular individuals, but to oversee the interpretation of the laws as applied to the executive branch, and to make clear what actions will and will not be tolerated. It was the last attorney general’s failure to do this that has brought discredit to the Department of Justice and disgrace on our nation.

Third, the assertion that by explaining his views on the legality of certain forms of interrogation he is alerting our enemies to the techniques we do or do not employ is both specious and dangerous. A nominee who has not been briefed can hardly reveal secrets he does not know. And leaving the enemy guessing as to whether we condone internationally prohibited practices weakens the prohibition, increasing the risk that our own men and women will be subjected to such treatment in the event of their capture.

In lieu of an answer, Judge Mukasey offers elaborate explanation of the method of analysis by which he would decide whether a practice such as waterboarding is lawful or unlawful. He offers assurances that once he concludes that a particular practice is unlawful, he “would leave office rather than participate in a violation of law.”

We have no reason to question his sincerity. But his unwillingness to take a clear and unequivocal position on a matter that should by now be beyond debate is deeply troubling, and leaves us far from certain that he would conclude at the end of his analysis that the practice is unlawful. Should he fail to do so, his analysis and his assurances would count for little.

For all of these reasons, we oppose his confirmation.

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