On September 17, 2007, Bush nominated Michael Mukasey, a very conservative federal judge retired just days before (September 9, 2007) from the Southern District of New York, to be Attorney General. Mukasey presided over the trial of Omar Abdel Rahman and El Sayyid Nosair who were involved in the first WTC bombing in 1993 but were convicted of conspiracy to blow up New York City landmarks. He also heard part of the Padilla case where he ruled that Padilla could be held as an enemy combatant though he could through a habeas petition challenge that designation. Patrick Leahy (D-VT) chairman of the Senate Judiciary Committee (SJC) initially demanded the White House deliver documents and witnesses it had been stonewalling on in exchange for bringing up Mukasey’s nomination, but quickly caved on this in part because another Democratic Senator Chuck Schumer (D-NY) was a sponsor of Mukasey.
Confirmation hearings were held October 17 -18, 2007. They were reminiscent of those of Chief Justice John Roberts. Mukasey gave smooth non-answers which avoided any specifics. Nevertheless, his positions could not be completely hidden. He backs Bush’s right to torture as long as it is not called torture. He believes in indefinite detention and suspension of habeas corpus for “enemy combatants”. He supports the sham Combat Status Review Tribunals(CSRTs) and thinks they are doing a good job. He would like to close Guantanamo but saidnothing about when and how he would do this or what would become of the detainees held there. He accepts that Bush’s Global War on Terror (GWOT) is a war in the legal sense without giving any legal rationale for this opinion. He suggested that Presidents see the War Powers Act as an unconstitutional infringement on their Article II powers as Commander in Chief. While saying that he would not like tosee a confrontation between the Legislative and the Executive branches over this, he sympathized with the President’s position. Along these same lines, he decried a unilateral Executive but supported it in certain circumstances. One of these was surveillance conducted outside of (the increasingly gutted and irrelevant) FISA.
He pledged to depoliticize the Department of Justice and cooperate on Congressional oversight but again refused any specifics. Disingenuously, he asserted that private meetings not under oath without a transcript for some current and former White House officials, as offered by Bush, would be more effective than public hearings under oath with a transcript since these would foster “franker” exchanges. He promised to review Office of Legal Counsel (OLC) opinions (used to justify most of Bush’s unconstitutional actions) and change those he disagreed with. He did not say he would share them with the SJC or other committees and subject them to Congressional oversight.
In short, aside from the more blatant politicization of the DOJ under Gonzales, Mukasey is on board with the Administration on most issues. His chief qualifications to date appear to be A) a willingness to take the job of Attorney General for 15 months, B) a pulse, and C) that he is not Alberto Gonzales.
On October 23, 2007, Democratic members of the SJC submitted the following written question to Mukasey: “Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations?” They suggested that their vote would depend on his response. On October 30, 2007, he gave a 4 page reply in which he didn’t answer the question, called it a hypothetical, and then went on at length about the legal reasoning that he would use to answer it if he ever had to. Since he referenced the “shocks the conscience” standard of the Bradbury memo (which essentially allowed waterboarding and reflected the views of Dick Cheney and David Addington), it is clear that Mukasey would never hold that this form of torture was illegal.
On November 2, 2007, two Democratic Senators from the pro-torture wing of the party Chuck Schumer (D-NY) and Dianne Feinstein (D-CA) announced that they would vote for Mukasey in committee, assuring a floor vote and likely confirmation. On November 6, 2007, the SJC approved Mukasey’s nomination 11-8 with all Republicans and the 2 Democratic Senators voting for torture and the unilateral Executive. On November 8, 2007, Mukasey was confirmed on an up or down vote engineered by Senate Majority Leader Harry Reid 53-40.
On December 14, 2007, Mukasey said he would not name a Special Prosecutor to look into the CIA’s destruction of torture tapes although the DOJ abetted the CIA in its torture activities by giving legal cover for them. (see item 194) Thus despite a glaring conflict of interest at the DOJ, he called the suggestion made by members of the Senate Judiciary Committee (SJC) for a Special Prosecutor an attempt to exercise “political influence” over the DOJ. Talk about Orwellian use of language.
On February 7, 2008, Mukasey in testimony before the House Judiciary Committee defended the Administration’s illegalities:
I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.
Since the DOJ in the Bush Administration is an extension of the White House, this means as Richard Nixon so succinctly put it in his interview with David Frost on May 19, 1977:
Well, when the president does it that means that it is not illegal.
This is in essence the American version of the Nuremberg defense. Those who do what the President says (torture, indefinite detention, extraordinary rendition, warrantless wiretapping of Americans) were just following his orders and his orders are by definition lawful as the White House and its lickspittle Judge Mukasey will attest.