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Schumer & Feinstein cave. (UPDATED)

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 statementafterward. However, Judge Mukasey, whose integrity and independence isrespected even by those who oppose him, is far better than anyone couldexpect 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 PresidentBush, and confirms a nominee who refuses to declare water-boardingtorture, allow me to offer a brief historical reminder: the SenateJudiciary Committee has conspicuously forgotten that there are directsituational and historical parallels with Judge Mukaseys nomination tobe Attorney General and that of President Richard Nixon nominatingElliot Richardson to be Attorney General during Watergate.

Nixons Attorney General had been removed (and was later prosecutedfor lying to Congress) a situation not unlike Alberto Gonzalessleaving the job under such a cloud. Nixon was under deep suspicion ofcovering up the true facts relating to the bungled break-in at theDemocratic National Committee headquarters at the Watergate, not tomention widespread rumors that he had engaged in abuses of power andcorrupt campaign practices. Today, Bush is under even deeper suspicionfor activities far more serious than anything Nixon engaged in forthere 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 Mukaseys situation is not unlike that facing ElliotRichardson when he was appointed Attorney General during Watergate, whyshould not the Senate Judiciary Committee similarly make it a quid proquo for his confirmation that he appoint a special prosecutor toinvestigate war crimes? Richardson was only confirmed when he agreed toappoint a special prosecutor, which, of course, he did. And when Nixonfired that prosecutor, Archibald Cox, it lead to his impeachment.

Before the Democrats on the Senate Judiciary Committee completelycave-in to Bush, at minimum they should demand that Judge Mukaseyappoint a special prosecutor to investigate if war crimes have beencommitted. If Mukasey refuses he should be rejected. This, indeed,should be a pre-condition to anyone filling the post of AttorneyGeneral under Bush.

If the Democrats in the Senate refuse to demand any suchrequirement, it will be act that should send chills down the spine ofevery thinking American.

About the Author

Grant Gallicho is an associate editor of Commonweal. You can follow him on Facebook and Twitter.



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I think that George Bush was absoluteley correct when he said that the techniques used are within the law, and members of the House and Senate know what I'm talking about, they have been fully briefed.I think that refreshing bit of candour speaks volumes about the kind of moral leadership currently occupying the government of the United States at every level reaching to the leadership of each party.It is now truly up to the people. The candidates need to be asked clear and unambiguous questions regarding their policy concerning torture.If I recall correctly they were and it appears that camels nose is now under the tent and it won't be long until the moral repugnancy of torture (I am sure it will have a much more sanitized name by then) wanes in the public mind.

Grant: What if the explanation regarding Mukasey's doublespeak is correct? Let's say that folks in the administration and some who work for them have approved of and carried out waterboarding. Let's also say that if the Attorney General publicly admits that such acts were torture, and therefore illegal, he would be implicitly claiming that some in the administration had committed crimes.If all of this is true, you seem to be suggesting that the litmus test for any AG nominee is whether or not she or he is willing to accuse some in the adminstration of a crime. This is beginning to seem like a blood in the water kind of moment.Why is it not reasonable to say that nomination hearings are not the place to sort out this issue?

On Friday's NewHour, someone (whom, I don't remember, Mark Shield??) said Schumer was waiting for another Dem to go with him on a Yes vote. He got Feinstien. Why did two of the most liberal Senators go for this? As problematic as the torture question is, the exeutive power question--about which Mukasey was pretty clear--is shocking : In war time Mukasey thinks the president can do what he wants. Is the bottom line here this: no one wants an impeachment battle now and no one wants war criminal charges down the line, therefore, the Dems, to say nothing of the Repubs, want this administration to die a peaceful death with an AG who will raise no questions. Will Mukasey bury the documents, etc., and let the Dems take over with a tabula rasa? Pretty appalling, if true. You all notice that Patricke Leahey's "no" vote announcement got buried by the Schumer-Feinstein "yes."

Joe: I'm surprised you toted out the term "litmus test" here--a tired one to be sure. This isn't about political opportunism. This is about pulling the country back from the brink. But maybe I'm misreading you--having some troubling figuring out your point in asking, "Why is it not reasonable to say that nomination hearings are not the place to sort out the issue?" Peggy's right. Torture is appalling enough, but how Mukasey conceives of executive authority is worse. Impeachment has acquired the air of a dirty word. But this administration should not die a peaceful death.

Grant: Sorry about the "litmus test" thing; that's why we writers need editors. However, the point remains. It seems to me that you and Margaret have set up the following option: Either a sham of a confirmation or the first hearings on articles of impeachment. Once you pull the trigger on the latter, you better have all of your ducks in order, and I can imagine a very plausible scenario in which the Democrats do not have their ducks so ordered.I would rather have a less than fully honest confirmation hearing for the AG than a very mishandled beginning on the road to impeachment.Let me be very clear that I do not think that impeachment is a dirty word. However, it is one of the gravest moves a Congress can make (a truth the Republicans did not live up to with their efforts regarding Clinton). Like you, I want to see some integrity return to our political system, both domestically and internationally, and I see things only getting worse on both fronts if impeachment proceedings are carried out in a very sloppy manner.One genuine question: Is it possible that enough Democrats were in on the torture that any effort to make such charges stick against those in the present Adminstration would also end up sticking to the Democrats? If so, that in itself seems reason enough why impeachment is never going to happen.

Joe: it's not an either/or scenario. Mukasey can and should be rejected. That won't happen now, but if it did, impeachment would not necessarily follow.To be clear, I don't think impeachment is a a probability. The Democrats are too timid; but I can't think of a graver threat to our system of government than a president who believes and acts as though he is above the law. Perhaps the new AG will provide the secret "enhanced interrogation" memos revealed by the NY Times. They should occasion hearings, and depending on what they contain, arrests. Although I doubt being advised on the tactics constitutes a violation of the law (many senators are still complaining about that selective process--itself an affront to the legislative branch), if that includes Democrats, so be it.

Grant: Maybe where I am misunderstanding you is what you would envision happening with the next nominee, should Mukasey not get confirmed. Presumably, that person would get asked, "Is waterboarding torture?" If the next nominee essentially prevaricates in the same manner as Mukasey, what then? Would you think it likely that the Bush administration would nominate someone who was willing to say, "Yes, I think if my future boss can be shown to have approved of waterboarding, then I think he broke the law."?I agree entirely with your concerns about executive authority. I only wonder what the best way forward is with regard to changing matters on this subject.Is there a good book that you could recommend on the topic, whether related to current issues or something from the past?

This morning's NYT repeating what seems to be the Feinstein-Schumer justification reports that the administration is not going to send anyone better than Mukasey for confirmation, ergo let's confirm him and get on with it. And who would take the AG job if Mukasey got turned down? Schumer claims that there will be legislation prohibiting waterboarding, etc., and that Mukasey agreed that Congress has the authority to pass such legislation (that's, if there are the votes, and if it's veto proof). Schumer met with Mukasey yesterday (Friday) and there's what I would assume is a sanitized version of their interview reported in the Times. They are both New York pols (actually probably Brooklyn pals) and it's possible some deal was struck regarding documents withheld, etc.Joe Petit has a good point about how much the Dems knew and when they knew it! This may be a fight none of them are eager to have. Still, I admire Leahy's probity. Interesting though that he made his announcement in Vermont rather than DC. Hmmmm???

I am glad that Mukasey has agreed that Congress has the authority to pass laws defining waterboarding as torture that are binding on the executive branch. I would think on issues such as this deferring to the Constitution is a good idea (Sorry for the sarcasm).Why does the Senate have to confirm anyone? Perhaps an acting attorney general, given this administration's penchant for stacking the deck with political hacks, is the best choice for this job. Maybe that is the only way for the Justice Dept to maintain the indepedence necessary to do its job.

I don't know what to make of Schumer's hearsay. Interesting the Mukasey didn't speak such reassurances at his hearings despite his many chances. The vast majority of Dems haven't been read in to the "enhanced interrogation" program, and several have been vocal about it. Perhaps they ones who haven't were asked by those who have to back down, but, again, to what degree does being read in make one complicit? But even if there's a Democratic conspiracy not to push this question further, where does that leave the issue for those Dems who have been outspoken about it, called for investigations, etc? Are they lone wolves? I doubt it. I don't think the argument Schumer makes is irrational, I just think it's wron headed because it sets a very dangerous precedent. Update: Joe, what kind of book are you looking for? And: Bush hasn't admitted to approving of waterboarding, so the scenario you set up doesn't have legs. I'm not holding out for an ideal candidate here, Joe, just one who has the spine to honestly name the most iconic example of torture in history. And one who doesn't think the president can break the law whenever he sees fit. I would filibuster.

"One genuine question: Is it possible that enough Democrats were in on the torture that any effort to make such charges stick against those in the present Adminstration would also end up sticking to the Democrats?"OF COURSE !!!!!

I don't know who knew what when. I do know that just because Pres. Bush says Congressional committees are read in does not make it so, be they Dems or Reps.Again, that Mukasey would even try to make the case that there are laws the Congress passes that are not binding on the Executive because they limit the President's Constitutional authority is reason enough not to confirm him. Isn't this a big part of what was wrong Gonzalez, both as A.G. and W.H. Counsel? The last time I checked there is a way of challenging the constitutionality of a law- the Courts. Of course, the Bush Administration has lost on issues related to this, like the Military Tribunal case, even at the Supreme Court level.If the Dems vote to confirm Mukasey, why were they so adamant about getting rid of Gonzalez? It is exactly this lack of consistency and coherence that is hurting the Dems so badly. This is where I agree with Grant that confirming Mukasey using Sen. Schumer's logic sets a bad precedent. To my mind whoever votes to confirm Mukasey, whether they were read in or not, is complict in the shame, illegality, and immorality of the enhanced interrogation program.

Not quite fair to say, as J. Dean seems to do, that the Democrats are caving on the AG nomination. It's only Feinstein and Schumer, after all. What moves the former I have no idea, but no doubt as suggested above, behind the scenes NY politics no doubt have something to do with Schumer (who, rightly or wrongly, has always seemed to me primarily out for himself -- thus distinguishing himself from all other politicos, of course).H. Clinton is against Mukasey. And so, of course, is Sen. Leahy of Vt (for whom I have regularly voted).

I find the Dean update very helpful, and it goes nicely with the point made by Scott that Mukasey's take on executive authority leaves little distance between him and Gonzalez. Clearly, the Democrats could have thought this whole process through much better than they did. Thus, Leahy might be voting no, but he still should take most of the blaime for this situation coming to pass in the first place.Grant: I was looking for suggestions on any book related to the issue of the President's authority in "wartime." One reason I would value being able to think this through more is that some of these bedrock Constitutional questions need to be translated in ways that are compelling to the public. Dean says that what Bush might have done would be much worse than what Nixon did. Whether or not that is true, my guess (and I would back up this guess with a pretty hefty bet) is that the public would view matters differently. This would then create a legitimacy problem for those who sought to pursue matters further.I want to be able to explain in language that has not yet emerged on this thread why what the President might have authorized is clearly an abuse of power. So long as the administration can hide behind semantics, those who seek accountability have a problem on their hands. Even if you can get people to agree that torture occured, it still seems to me that we need clearer language to explain why those who sanctioned the torture should be held accountable for their actions, especially if they thought they were acting with executive approval.I am not saying that this cannot be done, or that I wouldn't be sympathetic to such an effort. However, I would like to seek a greater cultivation of public opinion on this matter, and I am wondering about what kind of arguments should be used to accomplish that.

News from New York: Just back from a hair-cut where I had an earful from a salt-of-the-earth New York voter, who has been a big fan of Schumer and is a Dem. She is shocked that Schumer is going for Mukasey and promises never to vote for him again!She argues (over snipping scissors) that the Dems have caved on the most important issues. In her view they should just keep sending things back to Bush--let him veto it again! Let him send another unconfirmable candidate for AG. Nicholas Clifford, I am curious about Leahy's low-keyed announcement. What's your take?

Joe: The language is simple enough: the president believes that he can authorize acts that are against U.S. and international law. That is an abuse of power. And it's not just about torture. It's about wiretapping and FISA. It's about detaining U.S. citizens indefinitely without due process. No semantics to hide behind there. Although this is the legacy of Rove's up-is-downism.Check out Joseph Margulies's "Guantanamo and the Abuse of Presidential Power." Also, have a look at Scott Horton's response to l'affaire Mukasey: Andrew Sullivan):"I believe that Mukasey, as an individual, is exceptionally well qualified to serve as attorney general. I would approve the Mukasey who says he 'personally' finds waterboarding abhorrent. But I am troubled by the 'official' Mukasey who is being trotted out as something different. And I believe that the nation cannot, at this stage, accept the appointment of an attorney general who refuses to come clean on the torture issue. In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite."If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not."

Thanks Grant. The Horton post is pretty rigorous and convincing on why Bush, Cheney, et al have insisted on Mukasey's waffle. But the bit about the Federalist Society member's role in interviewing Mukasey as well as in the federal prosecutor brouhaha calls attention once again to the enablers who have fostered the illegal and/or immoral practices of the Bush Administration. It would be fascinating to know what Schumer and Mukasey struck a deal on--Schumer gets him confirmed and he goes after Gonzalez, Rove, Yoo, and through them Bush, Cheney, etc. No, I don't really believe that!

Schumer will be hurt by this. He has a smaller window of failure now. He will regret this action. As will Republicans who have no idea of the public outrage. Further, I am really ashamed of the Catholic right not coming out against this. As I have said even the evangelicals know torture is not Christian in any sense. W Bush and Co. An historic nightmare!

Was Leahy's announcement strangely low keyed as suggested above ? I'm not familiar enough with these sorts of things to judge. It can be found, incidentally, at it was indeed made in Vermont, where it is more likely to be favorably received than in Washington. But perhaps he should have tried to set conditions for the apparently incoming AG (of the kind Dean suggests) about war crimes investigations.

Mukasey is personally opposed to waterboarding but he won't try to impose his views on others--what liberal Democrat could possibly disagree with that line of thinking?

"Mukasey is personally opposed to waterboarding but he won't try to impose his views on others--what liberal Democrat could possibly disagree with that line of thinking?"And what conservative could possibly *agree* with that line of thinking?But seriously, Robert, what was important about Mukasey's statement was that he said torture violated the constitution, and that although waterboarding was "repugnant," he couldn't say whether or not it was torture until he had access to the classified information about it.He wasn't taking a position. He was being evasive. I don't think there is any serious doubt that waterboarding is torture, and I don't even think Bush, Cheney, Gonzales, and the others believe it isn't torture. The real issue is whether an administration can subvert the law and the constitution by making up their own definitions.Imagine if the Taliban, or Iraqi insurgents, or Al-Qaeda got their hands on American soldiers, subjected them to waterboarding, and put films of it on the Internet. Do you think anybody in America would defend the right to use this "enhanced interrogation" technique?Incidentally, I was a little baffled about why waterboarding was so terrible until I read the piece linked to below (the link is from another thread on dotCommonweal). Water is not just poured on the persons face. Its actually allowed to fill the lungs. As the piece puts it, its controlled drowning.

Leahy's statement is excellent, balanced and to the point. Thanks for the link.I said "low-keyed" because issuing it in Vermont (the center of the universe, I know) meant that it didn't get the attention it deserved from the media--who gave Feinstein and Schumer more attention than they deserved. It's important for people to remember WHY this is an issued; Leahy's statement reminds them.

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