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Mukasey clears nomination hurdle

Michael Mukasey, President Bush

Michael Mukasey, President Bush’s pick for attorney general, was virtually assured confirmation this week, after the Senate Judiciary Committee voted 11–8 to send his nomination to the full Senate. Two Democratic senators, Charles Schumer of New York and Dianne Feinstein of California, joined nine Republicans to provide Mukasey his winning margin. The other Democrats opposed Mukasey, citing his refusal to issue a blanket declaration that the interrogation technique known as waterboarding is a form of torture and therefore illegal. Schumer and Feinstein said they were swayed by Mukasey’s assurances that he would enforce any anti-waterboarding law that Congress passed. Schumer, who had originally proposed Mukasey to the White House, called him  far better than anyone could expect from this administration.

Mukasey, a 66-year-old retired federal judge who presided over several high-profile terrorism trials, had seemed headed for easy confirmation until he was asked for his views on waterboarding. Democrats also became uneasy when he said he believed that a president was allowed to ignore laws passed by Congress that clashed with his constitutional duty to protect national security. But Mukasey won bipartisan praise for his vows to stress professionalism and the rule of law in a department that has been widely accused of being partisan and politicized. President Bush had pushed vigorously for Mukasey’s approval, suggesting that a delay would hurt the war on terrorism.  Judge Mukasey has clearly demonstrated that he will be an exceptional attorney general at this critical time,  said White House spokeswoman Dana Perino.

The fact that the committee vote was so close speaks volumes about Democrats, said The Wall Street Journal. Mukasey was  universally saluted as an independent, consensus choice.  Yet his refusal to make a  pre-emptive legal ruling  on waterboarding until he had access to the classified evidence nearly cost him the job.  The political threshold that Senate Democrats established in this fracas is a measure of how distorted their anti-terror priorities have become.

What has been distorted, said the Denver Rocky Mountain News, is the very notion that we are a nation that respects human rights. Mukasey certainly is  qualified  to be attorney general, but the Bush administration put him in a terrible bind. An unequivocal declaration that waterboarding is illegal  could be construed as an admission of war crimes  and expose U.S. officials from President Bush down to legal liability, even criminal prosecution. But at least there’s reason to believe that as attorney general, Mukasey would fight to stop such abuses before they happened.

That’s giving him too much credit, said the Madison, Wis., Capital Times. Just like the hapless former Attorney General Alberto Gonzales, Mukasey takes a shockingly expansive view of a president’s powers. He made this clear when he parroted the administration’s view that congressional attempts to rein in surveillance activities  could infringe inappropriately on presidential authority.  Forget waterboarding. It’s Mukasey’s belief that the president is above the law that should disqualify him as attorney general.

Democrats made a fine show of demanding that Mukasey flatly declare that waterboarding is a form of torture, said Stuart Taylor Jr. in National Journal. But isn’t it interesting that  Congress itself has assiduously and repeatedly declined  to pass a law to that effect? The reason is obvious. Democrats are trying to  have it both ways,  making civil libertarian noises but refusing to take moral and political responsibility for actually banning all  coercive  interrogation techniques of al Qaida terrorists.

Passing such a law shouldn’t be necessary, said Dahlia Lithwick in Slate.com. Waterboarding is considered to be torture by nearly every legal authority and relevant treaty. That’s why it’s a shame that Sens. Schumer and Feinstein caved, mouthing platitudes about Mukasey’s supposed  independence.  Like the other loyalists around Bush, Mukasey is only independent  from the constraint of statute, convention, legal precedent, and the Constitution.’’

Senate Democrats say they’ll push legislation banning waterboarding as soon as Mukasey is confirmed. Senator Schumer, a co-sponsor of one such bill, says Mukasey has  pledged to enforce such a law.  But passage is far from assured, and, as Sen. Patrick Leahy, chairman of the Judiciary Committee, noted:  Any such provision would have to be enacted over the veto of the president.

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