Mukasey, Torture and the Abuse of Presidential Power

Late Friday, Senators Chuck Schumer and Dianne Feinstein announced they will vote in favor of confirming Judge Michael Mukasey for the attorney general post. And over the weekend, there’s been a lot of chatter on the blogs.

The Democratic duo are taking nearly as much criticism as the judge himself for not denouncing waterboarding. (Torture hasn’t gotten this much attention since Abu Ghraib.)

Mukasey is even losing support from someone who was enthusiastic about his nomination before. Harper’s blogger Scott Horton, who was pro-Mukasey before, even after recounting a scary meeting the judge had with Bush officials before his nomination, seems to be on the fence now:

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 his blog for The Nation, John Nichols calls for a do-over: “Mukasey’s critics on the committee, led by Leahy and Feingold, should do everything in their power to re-frame the debate to focus on the broader question of whether a president can break the law – and on the nominee’s entirely unacceptable answers to it.”

Similarly, on Talking Points Memo, former Nixon White House counsel John Dean called for Mukasey to promise to appoint a special prosecutor to investigate the president:

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.

But back to torture. On Balkinization, Marty Lederman chides The Washington Post for its editorial which gives the Senate Judiciary Committee the thumbs-up for confirming Mukasey only if it bans torture by passing Senator Joe Biden’s National Security with Justice Act. It’s a nice thought, but as Lederman points out, torture is already illegal many times over. Passing another is just an empty promise.

Kinda like the ones Bush makes.