We’ve Seen This Before
Kagro X has a post focusing, again, on Michael Mukasey’s evasions about the Constitution. Kagro focuses not on Mukasey’s confusion about whether water-boarding is torture, but whether the President can ignore existing laws.
Any president — and I mean any president — ought to beable to depend on a certain amount of deference from his or herAttorney General, of course. This ordinarily goes without saying, butin this case must be said because it sets up an irreconcilable paradox.Is it even possible to serve an administration that regularly assertsconstitutional interpretations like the one Judge Mukasey did andprotect the fundamental rule of law which underlies our entireconstitutional system of government? How could it be so?
[snip]
An "administration" that sends distinguished federal judges toCapitol Hill and puts them in a position requiring them to hedge onanswers to such basic questions as must a president obey federalstatutes is operating so far outside the bounds of normalcy already,that it hardly seems worth anyone’s time to pretend that an AttorneyGeneral is necessary to the functioning of the government at all.
I’d like to reinforce Kagro’s point by pointing to the consistency, across time and nominees, of the Administration’s AG candidates on this Constitutional question. Here’s the complete context of the Mukasey comment that Kagro is focused on.
LEAHY: And,lastly, where Congress has clearly legislated in an area, as we’ve donein the area of surveillance with the FISA law, something we’ve amendedrepeatedly at the request of various administrations, if somebody — ifit’s been legislated and stated very clearly what must be done, if youoperate outside of that, whether it’s with a presidential authorizationor anything else, wouldn’t that be illegal?Â
MUKASEY: Thatwould have to depend on whether what goes outside the statutenonetheless lies within the authority of the president to defend thecountry.
LEAHY: Where does the president get that authority? Ithinking of the Jackson opinion and others. Where does he get theauthority if it’s clearly enunciated what he can do, law that hesigned, very clearly enunciated? I mean, the president say, Thisauthority, I’m going to order the FBI to go in and raid 25 housesbecause somebody told me they think someone’s there. We’re not going towait for courts, we’re not going to do anything else. There’s nourgency, but we’d just kind of like to do that.
MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.
AndI recognize that you’ve posited the case that way for a reason. But thestatute, regardless of its clarity, can’t change the Constitution.That’s been true since the Prize cases. And it was true before that.
LEAHY:Can a president authorize illegal conduct? Can the president — can apresident put somebody above the law by authorizing illegal conduct?
MUKASEY:The only way for me to respond to that in the abstract is to say thatif by illegal you mean contrary to a statute, but within the authorityof the president to defend the country, the president is not puttingsomebody above the law; the president is putting somebody within thelaw.
Can the president put somebody above the law? No. The president doesn’t stand above the law.
But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]
Leahy is concerned about whether Bush can just decide to operate outside of FISA–or any other law that explicitly limits the behavior of the Executive Branch. But he’s also concerned about whether the Administration can offer immunity for someone who follows the President’s orders in operating outside of statute.
This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales–back before we knew the extent of Gonzales’ craven willingness to put law aside for politics. The topic is different–Leahy is asking about torture, not wiretapping. But the response is almost the same.
I don’t understand the point of having laws anymore. Or, another way of putting it, laws are for the little people.
It seems that a line is about to be crossed. We have seen other lines crossed that no citizen of this country would have ever imagined. We have seen many violations of our own constitution, federal and state laws ignored, and international war crimes, and we don’t even know about many of them. There is no punitive arrangement, and there is little surprise. With enough lines crossed, there is no point discussing it any longer amongst government personnel, as they knew long ago that the change had occurred. We live in a country that no longer values the individual voice that created the country. We have no candidates for president except Dennis that deserve consideration because they won’t say anything contrary to the status quo.
The sheep are going to get what they want. They have been told what they want for their entire lives by the medium, as a few generations before them have. Once diamonds were just white rocks and of little value. Once we had a form of democracy. Both no longer apply.
EW, I agree that Mukasey appears to be less of a political hatchet man that Gonzo turned out to be, but I am extremely worried about having the United States Senate confirm an Attorney General who has stated that the President dictates what is and isn’t law (via his magical ability to make sure the conduct of the administration is within the law) and who cannot recognize what constitutes torture. If Mukasey is confirmed, the Senate would be declaring that they are completely irrelevant as a governing body and that the President is not constrained by the Constitution or international law. To me Mukasey’s confirmation says a lot less about him and what he will and will not do, than it says about the Senate and what it will and will not allow.
EW – any AG that believes that the President has the authority to decide if a rule/law is in line with his view of the Constitutionally delegated executive branch responsibilities is indeed dangerous to the very idea of democracy, the rule of law, and the Constitution itself.
Where in the Constitution does is the President granted the authority to adjudicate law? That type of power is the province of kings, dictators, and tyrants. Under those forms of governments, courts may indeed exist, but only as perfunctory bodies that provide a semblance of the rule of law. These courts, set up to handle the minor (meaning all things not related to the dictator directly, his friends, families, or business associates)day to day disputes, shimmer like a mirage in the desert falsely advertising water and the oasis up ahead. But as with a mirage, when the disputes involve the dictator , his friends, families, or business associates directly, the dictator pulls adjudication back into his own hands. The contempt for the rule of law becomes apparent, just the like the mirage in the desert disappears and the realization that there is no water uncomfortably settles in.
â€I don’t think Mukasey is as reprehensible as Gonzales. I doubt he’d continue the practice of politicization of justice in this country. But it does appear clear that Mukasey would happily endorse David Addington’s theories of unitary executive.â€
Of course Mukasey is on board with the Addington/Cheney UE; they won’t be nominating anybody who is not. For the record, I still don’t believe the Administration gives a rat’s ass whether Mukasey is confirmed or not; and may, underneath it all, secretly hope that he is not confirmed. As to whether Mukasey is as reprehensible as Gonzales, I guess that is in the eye of the beholder. Gonzales was a weak cipher upon which the evils were imprinted. Mukasey is no cipher, he knows and has seen the trenches, and has no excuse for not knowing the pernicious effect of the the Bush policy and procedure set; yet appears willing to propagate the most questionable and evil parts. To my mind, that almost makes him worse than the ignorant little twit Gonzales that was in it only to serve Bush. Close call; I don’t have much for either one quite frankly. As to whether the politicization will continue, we are late enough in the game that it might not matter. In spite of the losses they have been suffering lately, there are still an awful lot of seed pod assets firmly planted throughout the DOJ, and the Regent-phillic hiring authorities are still in place as far as I know (Monica was neither the original, nor the main one of these). There are only 15 months left, i am not sure Mukasey would have a great deal of impact even were he to be confirmed.
EW, I can’t find my tin hat, so pardon me while I wear your’s. It fits nicely, and I swear, I showered today.
If the President can decide that the 4th Amendment (which is what the FISA bill is all about) restricts his Constitutionally delegated responsibility to protect the nation, then what would stop him from deciding that the 22nd amendment also prevents him from saving the U.S. from the always imminent truly collosal islamofascist attack that will wipe out our way of life?
The biggest problem with Mukasey is that he jettisoned his independence (if not his integrity?) between the first day of his testimony and the second day of his testimony before the Senate Judiciary Committee. Between those two sessions, he obviously received a loud and clear message that if he did not change his tune and his tone, his nomination would be withdrawn.
It may be that Bush will refuse to appoint ANYONE as AG who insists on being independent. But if that is the case, the remedy is expedited impeachment proceedings of Bush & Cheney jointly, not accepting a nominee who has already hocked the family jewels for a mess of pottage!
hardheaded
That’s what I understand. I wish I had seen the testimony–I was doing dayjob stuff. But I keep thinking about LHP’s read that Mukasey was lobbying to get this appointment, which suggests he’d be susceptible to Cheney’s, um, persuasions.
bmaz
Yes, like you, I’m not sure Bush much cares about AGAG. Though I do wonder who is certifying to FISA the wiretaps.
The biggest problem with Mukasey is that he jettisoned his independence (if not his integrity?) between the first day of his testimony and the second day of his testimony before the Senate Judiciary Committee. Between those two sessions, he obviously received a loud and clear message that if he did not change his tune and his tone, his nomination would be withdrawn.
It may be that Bush will refuse to appoint ANYONE as AG who insists on being independent. But if that is the case, the remedy is expedited impeachment proceedings of Bush & Cheney jointly, not accepting a nominee who has already hocked the family jewels for a mess of pottage!
ApacheTrout — If the President can decide what is and isn’t law, then the answer to your question would be that there is nothing, certainly not Congress, to stop him.
Adding to phred’s comment, this is why KagroX’s point is so well taken. And with Sibel Edmonds coming out with new overatures of testimony, gag order be damned, well Murkasy’s cup runneth over.
Gonzo told Senator Feingold at the same confirmation hearing that his question about wiretapping was a â€hypothetical,†too. And when Feingold got Gonzo in front of him again to follow up on that, Feingold thought he had caught Gonzo in a lie:
But I don’t think Gonzales was lying. He was saying then what the Senators are only just now beginning to understand that Mukasey is saying now: that when the president authorizes actions, they are by virtue of his having done so not in contravention of criminal statutes.
Phred – were you wearing your tin hat when you answered me? I sure hope so, because your answer is troublesome. I know, I know, everyone discounts this, but I believe that the logic that allows the President to void one amendment extends to his voiding others.
ApacheTrout — Alas no, I lost my tin hat awhile ago This is what I meant by my comment earlier (and I think is also the central point of Kagro’s post), if the Senate knowingly confirms an AG who has testified that the President decides what is and isn’t the law (by virtue of his singular ability to divine what is required to defend the country) then we have no need of Congress. The President can set aside whatever laws he determines is necessary to defend the country.
Now, I don’t think BushCo is currently working towards setting aside the 22nd amendment. My point was simply that our list of what the President can’t do is getting shorter each day that Congress condones this abuse.
As an aside, I agree with Canuck Stuck in the Muck who noted on the thread on Kagro’s post below that the President is supposed to defend the Constitution, so this endless refrain about his authority to defend the country is disingenuous at best.
If it’s ever accepted that the President can decide what Law is, then there’s no more need for Congress of the Court. Et voila, dictatorship.
Apparently Mukasey doesn’t have the balls to be AG, a judge or even an American citizen.
I wonder, is there anybody in Congress who does?
Hardhead: The biggest problem with Mukasey is that he jettisoned his independence (if not his integrity?) between the first day of his testimony and the second day of his testimony before the Senate Judiciary Committee.
Exactly. Cheney must have called him and given him a very stern talking-to. And an American with any integrity at all would have showed up to the second day of testimony, revealed the threats or blackmail that must have been made against him, along with their source, suggested that the Congress pursue impeachment of this lawless Administration, and then withdrawn his nomination.
If he was really classy, he could have come up with a quote from Brandeis or Learned Hand. Something like ’Men feared witches and burned women, the remedy for evil counsels is good ones, as a judge I must weigh the magnitude of the harm against the probability of its occurance, and I can not in good conscience serve a President who wakes up every day and wipes his ass with the Constitution.’
I’m surprised that no one has mentioned Jack Goldsmith’s book, The Terror Presidency, a must read if you want to understand the administration’s position regarding presidential powers. It’s a lot more complicated than it seems.
Hillary is waffling on Mukasey. She isn’t sure if she’s going to vote against him …. I guess her focus-grouping hasn’t come up with the answer she wants yet.
NY Sun via TPM:
â€Senator Clinton is deeply troubled by Judge Mukasey’s unwillingness to clearly state his views on torture and unchecked executive power,†a spokesman for her Senate office, Philippe Reines, told the Sun in an e-mail yesterday.
Mr. Reines refused to say whether that meant that Mrs. Clinton intended to oppose Judge Mukasey or even whether she has made a final decision …