July 10, 2008—Even Sen. Charles Schumer, whose vote last year ensured Michael Mukasey’s confirmation as Attorney General, was left sputtering as Mukasey returned the favor by rebuffing Schumer’s concerns about the Bush administration’s political prosecutions.
At the end of his round of Senate Judiciary Committee questions, Schumer referred to allegations that White House political adviser Karl Rove had pressed for the selective prosecution of Alabama’s Democratic Gov. Don Siegelman, who was viewed as a threat to Republican dominance of the South.
“Do you think that someone in the Justice Department should ask Karl Rove whether he was involved, whether he did the things that are alleged – someone somewhere – or is there a possibility that no one should ever ask him?” the New York Democrat said, his voice rising.
Mukasey responded coolly that he would not endorse the questioning of Rove. In disgust, Schumer said, “I find these answers very disappointing.”
But Schumer was not alone. At the oversight hearings on July 9, the committee’s Democrats and the ranking Republican, Sen. Arlen Specter of Pennsylvania, voiced varying levels of disappointment at Mukasey’s refusal to look back at the misconduct – including criminal acts – that had occurred earlier in the Bush administration.
Indeed, Mukasey’s evasive answers recalled the stonewalling of his predecessor, Alberto Gonzales. Mukasey’s vague and meandering responses made two things clear, however: George W. Bush’s hubris about what he sees as his unlimited presidential powers continues and Mukasey will serve as Bush's rearguard protector during his final six months in office.
In a separate confrontation with two House committees, Mukasey has promulgated a novel legal theory justifying his refusal to release FBI reports on interviews with President Bush and Vice President Dick Cheney about their roles in exposing the identity of CIA officer Valerie Plame.
Even though Bush has not asserted executive privilege regarding the FBI reports, Mukasey has refused to honor subpoenas from the House committees on the grounds that to do so would threaten “core Executive Branch confidentiality interests and fundamental separation of powers principles.”
Mukasey’s theory ignores a variety of precedents, including the public release of criminal-case testimony by Bush’s three predecessors (Bill Clinton on the Monica Lewinsky case, George H.W. Bush on the Passportgate affair and the Iran-Contra scandal, and Ronald Reagan on Iran-Contra.)
In his Senate testimony, Mukasey also left no doubt that the Justice Department would take no action against anyone in the administration who violated criminal statutes in the “war on terror” if they were following legal advice from superiors, a modern version of the so-called Nuremberg defense.
Sen. Dick Durbin, D-Illinois, urged Mukasey to “follow what I think is the clear standard of the law within your own department and initiate those investigations” into the Bush administration’s abuse of detainees, including the use of “waterboarding,” a form of simulated drowning.
Durbin noted that retired Major General Antonio Taguba, who was in charge of the Abu Ghraib prisoner abuse probe, stated recently that “the Commander in Chief and those under him authorized a systematic regime of torture” and that “there is no longer any doubt about whether the current administration committed war crimes, the only question that remains is whether those who ordered the use of torture will be held accountable.”
Mukasey, however, responded that anyone who acted in “good faith” and relied on the Justice Department’s legal advice “cannot and should not be prosecuted.” The same protection should cover government lawyers who gave the advice, he said.
“What lawyers have to do is adhere to the law and not concern themselves with what might be politically acceptable later on, and if we go after them and prosecute them, then that’s exactly what they’re going to be concerned with,” Mukasey said.
Mukasey’s point was that the lawyers were adhering to the law – and acting above politics – when they authorized torture, and that politics only entered the picture when someone thought they should be punished for breaking the law.
The Attorney General's disdain for this subject was reflected, too, when he told the senators that he still hasn’t bothered to determine whether “waterboarding” is torture, arguing that he doesn’t need to make that judgment because the technique is no longer part of the administration’s approved tactics for interrogating detainees.
“I detect a very pronounced reluctance to look backwards into the problems at the Department of Justice,” said Sen. Sheldon Whitehouse, D-Rhode Island, citing other troubling opinions from the department’s powerful Office of Legal Counsel that granted Bush virtually unlimited powers.
Whitehouse, who also serves on the Senate Intelligence Committee, said that in his review of still-secret legal opinions, “I’ve seen exaggerated and unreasonable claims of executive authority” as well as examples of poor scholarship. He called the OLC “George Bush’s little shop of legal horrors.”
Whitehouse also suggested that Congress had only a vague idea of other secret assertions of Bush’s powers. The senator cited an unreleased OLC opinion that would permit the President to violate or waive existing presidential executive orders without changing them or disclosing the waiver.
This notion of secret presidential waivers raises concerns that legal protections contained in executive orders could give false comfort to Congress and American citizens, Whitehouse said. But Mukasey endorsed Bush’s right to do whatever he wished regarding executive orders.
Though Schumer and other Democrats expressed annoyance at Mukasey’s refusal to hold the Bush administration accountable, the Attorney General’s biases should not have come as a surprise.
When he was picked in September 2007 to replace Gonzales, administration officials praised his work as a federal judge in New York where he approved the indefinite incarceration of hundreds of Muslims on phony material witness warrants after the 9/11 attacks. He also signed off on Bush imprisoning an American citizen – and Muslim convert – Jose Padilla simply on a presidential say-so that Padilla was an “unlawful enemy combatant.”
Ironically, the Mukasey-approved round-up of Arab cab drivers, pizza delivery men and students came as the Bush administration was granting special permission for rich Saudis, including members of Osama bin Laden’s family, to flee the United States after only cursory FBI questioning.
The arresting of the “usual suspects” – while the well-connected who actually might know something were whisked away – was perhaps the first signal of how Bush’s “war on terror” would proceed, draconian actions that create the appearance of a serious crackdown when the reality was quite different.
Before his confirmation, Mukasey demonstrated where his loyalties lay when he refused to venture an opinion on whether “waterboarding” amounted to torture, claiming that he had not been briefed about the program. That led most Democrats to oppose the nomination, but Schumer and Sen. Dianne Feinstein of California provided the Democratic votes needed to send Mukasey’s nomination to the Senate floor and to confirmation.
After taking over the Justice Department, Mukasey still showed no curiosity about the administration’s past use of torture or about the legal opinions underpinning Bush’s theories of unlimited presidential powers. The Attorney General insisted that his only interest was in looking to the future.
So, despite the belated fuming by Schumer and other senators at the July 9 hearing, Mukasey has long seen his role less as the nation’s chief law enforcement officer than as the chief protector of Bush’s crimes of state – from torture, to warrantless wiretaps of Americans, to exposing the identity of CIA officer Valerie Plame, to unleashing the Justice Department against political enemies, etc.
Michael Mukasey has become the Bush administration’s new “Mr. Cover-up.”
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This story was published on July 10, 2008.