Mukasey Strives for Balance in Confirmation Testimony
Attorney general nominee Michael B. Mukasey pledged this morning to adhere to the law and protect the civil liberties of Americans if he is confirmed as the head of the Justice Department, subtly signaling a fresh start after the tumultuous tenure of Alberto R. Gonzales.But Will He Walk The Walk?
"Protecting civil liberties, and people's confidence that those liberties are protected, is part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us," Mukasey said in prepared remarks. "We have to succeed at both."
Mukasey also sharply criticized a Justice Department legal opinion issued early in the Bush administration, and since rescinded, that narrowly defined the acts that constitute torture and laid the legal groundwork for the use of harsh interrogation techniques on U.S. detainees.
Calling the memo "a mistake" and "unnecessary," Mukasey said that torture violates U.S. laws and pointed to the role of American troops in liberating Nazi concentration camps following World War II. "We didn't do that so we could then duplicate it ourselves," he said.
We have a long history of Bush appointees saying what they think congress wants them to say and then doing the opposite. Think Alberto Gonzales, John Roberts and Antonin Scalia. Have we been had again? Time will tell.
Spencer Ackerman has more on the TALK
That was, um, unexpected. Not only did Michael Mukasey repudiate the so-called 2002 "torture memo" signed by Office of Legal Counsel chief Jay Bybee -- which appears to have survived in spirit, if not in letter -- but he compared U.S. torture to the Holocaust.
Most significantly, Mukasey said that he is unaware of any inherent commander-in-chief authority to override legal restrictions on torture -- a huge repudiation of Dick Cheney, David Addington and John Yoo's perspective on broad constitutional powers possessed by the president in wartime -- or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.
The Bybee memo is "worse than a sin, it's a mistake," Mukasey said. He referenced the photographs taken by U.S. troops who liberated the Nazi concentration camps in 1945 to document the "barbarism" the U.S. opposed. "They didn't do that so we could duplicate what we oppose." Beyond legal restrictions barring torture clearly, torture is "antithetical to what this country stands for."
And still more of the right talk
Michael Mukasey, responding to questioning from Sen. Chuck Schumer (D-NY), endorsed the memoir -- and, implicitly, the legal perspective and bureaucratic predicament -- of Jack Goldsmith, the former Office of Legal Counsel chief, who fought Addington and Alberto Gonzales on interrogations, detentions and surveillance policy. "I thought it was superb. I couldn't put it down. In a way, I was sorry when it was finished," Mukasey said.
Among the largest legal disagreements between Goldsmith and Addington centered around presidential authority. Addington argued that power is a zero-sum game, where congressional power necessarily encroaches on executive authority; Goldsmith found it an enhancement, generating consensus for presidential decisions. Mukasey placed himself squarely in Goldsmith's camp. "I would certainly suggest going to Congress whenever we can. It always strengthens the hand of the president," Mukasey said. "Unilateralism, across the board, is a bad idea."
The question remains - will he walk the walk?