Apparently Mukasey’s unwillingness to call waterboarding torture along with his view that the president of the United States can operate outside the law weren’t enough to persuade Senators Chuck Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) that he’s the wrong man for the job. Their endorsement makes Mukasey’s confirmation all but assured. Schumer’s explanation is especially, well, tortured:
“Judge Mukasey is not my ideal choice,” Mr. Schumer said in a statement
afterward. “However, Judge Mukasey, whose integrity and independence is
respected even by those who oppose him, is far better than anyone could
expect from this administration.”
Really? So how do you explain Mukasey’s bizarre 180 on torture and executive authority from the first day of his hearings to the second? The tune-change was distressingly reminiscent of Gen. Petraeus’s turnaround on the question of whether the war in Iraq is making us safer. After Petraeus corrected his initial “no” with a “yes” just a few hours later, one senator wondered aloud whether the White House had gotten to the general. Likewise, I can’t but question whether such a thing happened to Mukasey. If so, what sort of integrity does that demonstrate? What kind of independence?
Did President Bush’s petulant complaints about the supposed holdup on Mukasey’s confirmation push Schumer and Feinstein to their decision? Or were they offered something in return? It’s hard to imagine the two liberal senators would be comfortable with Mukasey’s unwillingness to disavow waterboarding as torture, to say nothing of his testimony on executive authority, in which he suggested that the president is exempt from following certain laws when they conflict with his duty to protect Americans. A vote for Mukasey is a vote for an imperial executive branch. It is a vote against the very system of government Schumer and Feinstein swore to uphold.
Update: Former Nixon White House counsel John W. Dean sees something familiar about the Mukasey nomination:
As the Senate Democrats complete another sad concession to President
Bush, and confirms a nominee who refuses to declare “water-boarding”
torture, allow me to offer a brief historical reminder: the Senate
Judiciary Committee has conspicuously forgotten that there are direct
situational and historical parallels with Judge Mukasey’s nomination to
be Attorney General and that of President Richard Nixon nominating
Elliot Richardson to be Attorney General during Watergate.
Nixon’s Attorney General had been removed (and was later prosecuted
for lying to Congress) – a situation not unlike Alberto Gonzales’s
leaving the job under such a cloud. Nixon was under deep suspicion of
covering up the true facts relating to the bungled break-in at the
Democratic National Committee headquarters at the Watergate, not to
mention widespread rumors that he had engaged in abuses of power and
corrupt campaign practices. Today, Bush is under even deeper suspicion
for activities far more serious than anything Nixon engaged in for
there is evidence Bush has abused the laws of war, violated treaties,
and ordered (or approved) the use of torture and political renditions,
which are war crimes.
Since Judge Mukasey’s situation is not unlike that facing Elliot
Richardson when he was appointed Attorney General during Watergate, why
should not the Senate Judiciary Committee similarly make it a quid pro
quo for his confirmation that he appoint a special prosecutor to
investigate war crimes? Richardson was only confirmed when he agreed to
appoint a special prosecutor, which, of course, he did. And when Nixon
fired that prosecutor, Archibald Cox, it lead to his impeachment.
Before the Democrats on the Senate Judiciary Committee completely
cave-in to Bush, at minimum they should demand that Judge Mukasey
appoint a special prosecutor to investigate if war crimes have been
committed. If Mukasey refuses he should be rejected. This, indeed,
should be a pre-condition to anyone filling the post of Attorney
General under Bush.
If the Democrats in the Senate refuse to demand any such
requirement, it will be act that should send chills down the spine of
every thinking American.