Balkinization: Confirm Michael Mukasey

Comments:

I would only add that Mukasey has a better than average chance of remaining AG in a Giuliani Administration, proving the possibility of continuity.

# posted by

Bart DePalma : 12:43 PM

Scott: I strongly disagree. Before any decision is to be made, the Senate must ascertain Mukasey’s views about torture and cruel, inhuman or degrading treatment. Any acceptable nominee for attorney general must clearly and publicly affirm that torture and ill-treatment are always and everywhere forbidden by law. This prohibition is binding on the US by virtue of the Geneva Conventions, the International Covenant on Civil and Political Rights (ICCPR), the Torture Convention, customary international law, jus cogens, the UCMJ and other relevant federal statutes.

The non-self-executing declarations attached to the ICCPR and the Torture Convention, and the unresolved debate whether the Geneva Conventions are self-executing, mean that (in practice, if not by law) judges are inhibited and perhaps blocked from enforcing treaty prohibitions on torture and ill-treatment. That places effective responsibility for enforcing executive branch compliance with treaty prohibitions on torture and ill-treatment almost exclusively in the hands of the attorney general. The attorney general will play a large role in determining whether torture and ill-treatment will be used.

The Senators need to ask Mukasey the following questions.

1. Is it ever legal to inflict torture or cruel, inhuman, or degrading treatment on any person?
2. Does the President ever have legal authority to order such treatment to be used?
3. Which of the "enhanced interrogation techniques" used by the CIA (*including* prolonged isolation, sleep deprivation, sexual humiliation, manipulation of phobias) are prohibited by law?

Unless the nominee can give clear and unequivocal answers to these questions ("no" to 1 and 2 and "all of the above" to 3), he should not be confirmed.

It is misleading to write that “the president is entitled to nominate a candidate who represents his views on legal policy.” The president is not entitled to nominate someone who will tolerate torture and ill-treatment.

# posted by

Jamie Mayerfeld : 1:16 PM

I agree with Jamie Mayerfield that the interrogation policy issues need to be vetted. By saying that Bush is entitled to an attorney general who upholds his policies I don't mean to say that this can be done outside of the law. That indeed is fundamental.

# posted by

Scott Horton : 1:42 PM

"First, the president is entitled to nominate a candidate who represents his views on legal policy."

Presidents generally may be entitled to nominate a candidate who represents his views on legal policy, but this president is entitled to nothing but a fair war-crimes trial at the Hague. I express no opinion on Mukasey, but I do not think that our differences with Bush are differences on legal policy. They are differences in whether we accept the Constitution and the laws that used to govern this nation.

# posted by

Henry : 2:12 PM

Even if Judge Mukasey isn't a fan of handling terrorism through the criminal justice system, I'm confident he'll at least insist that terrorism suspects are handled through SOME sort of legal process. He won't let things dangle in limbo until some Supreme Court decision forces the administration to actually come up with something.

Gonzales never had the credibility on terrorism issues to be any kind of policy-setter for the administration; he existed solely to rubber-stamp whatever the White House felt like doing. Judge Mukasey brings a genuine expertise to the position and thus has the ability to make credible proposals on this issue.

# posted by

Steve M : 2:47 PM

Jamie Mayerfeld said...

Scott: I strongly disagree. Before any decision is to be made, the Senate must ascertain Mukasey’s views about torture and cruel, inhuman or degrading treatment.

This line of questioning will be largely fruitless unless accompanied by a factual basis against which to apply the law. Everyone, including the Bush Administration, agrees that torture and cruel, inhuman and degrading treatment is wrong, but the rub is always what constitutes torture and cruel, inhuman and degrading treatment.

# posted by

Bart DePalma : 3:11 PM

What does it suggest when, in order to get a principled Attorney General, we must first go through a calamity? This seems to be an argument against the mode of appointment we now have, and in favor of something else (a shadow cabinet?).

# posted by

Chausovsky : 3:29 PM

This comment has been removed by the author.

# posted by

wg : 5:37 PM

(reposting, typos)

OK we give up, we will give you something you want but there must something for us in it too, say Cheney's Patriot Act agenda. Deal?
---
The guy is clearly on a mission to expand the Patriot Act much further so this will have to be watched very carefully, but generally I agree with the author, given the desperate state of the DoJ we should take this "deal".

Two issues, however. His managerial skills and his religiosity. The first is important because this is a massive agency and judges typically have zero managerial skills. Any take on it?

Re his religiosity, I, like most of us could not care less whether he is an Orthodox Jew, devout Muslim, Hari-Krishna, Rastafarian or whatever as long as he keeps it private, is not too rabid about it and leaves it behind when he enters his office in the DoJ. Anything in his background suggesting we could have a problem here?

# posted by

wg : 5:43 PM

This line of questioning will be largely fruitless unless accompanied by a factual basis against which to apply the law. Everyone, including the Bush Administration, agrees that torture and cruel, inhuman and degrading treatment is wrong, but the rub is always what constitutes torture and cruel, inhuman and degrading treatment.

First of all, I don't think the Bush Administration and certainly not "everybody" does believe that.

Alan Dershowitz, for instance, doesn't believe it.

Rather substantial percentages of the American people don't believe it.

The producers of "24" likely don't believe it.

And I don't think the entirety of the Bush Administration believes it. Does Cheney believe it? Did John Yoo and Alberto Gonzales and Jay Bybee believe it?

Really, Bart, I think you would concede that in fact there are many people in this country and including in the administration who believe that national security concerns can trump the rules against torture and certainly the rules against cruel, inhuman, and degrading treatment. That, after all, is what the "ticking bomb" scenario we hear all the time is all about.

Further, with respect to cruel, inhuman, and degrading treatment, there has been a great reluctance among Congress, the courts, and the Bush Administration to apply to it the full set of sanctions that apply to torture. First, it is defined narrowly under a reservation and understanding to the Convention Against Torture to mean only that conduct which shocks the conscience. Then, it is unclear to what extent the Torture Act bars it. And the Bush Administration has argued that the reservation and understanding exempts foreign detainees altogether from any protection against cruel, inhuman, and degrading treatment.

So, no, the only issue is not "how is it defined?". There's plenty of questions to be asked about if there are situations where the rules don't apply, whether the cruel, inhuman, and degrading treatment prong applies to foreign detainees, whether it is limited to actions that shock the conscience.

With respect to how is it defined, it is also the case that while the Bush Administration can attempt to avoid discussing whether particular techniques are illegal (as it has done in the past), the Democrats are under no obligation to confirm the attorney general either. This is a very different ballgame than the oversight hearings that have occurred in the past.

# posted by

Dilan : 5:54 PM

dilan:

The President's appointees have been frequently been asked if they oppose torture and they all say yes.

The question is meaningless because every single one of us has different ideas of what constitutes "torture."

The definition of "torture" as "severe pain" does not provide much assistance because we all have different ideas of what constitutes "pain."

The examples of given here of what posters believe constitute "torture" have ranged from sensory deprivation by blindfolding to beatings.

In order to get a substantive answer, you need to provide a factual basis by describing the act and then ask the respondent whether they think that act is torture.

Anything else is useless political posturing.

# posted by

Bart DePalma : 9:04 PM

I am a very liberal Democrat, and think Judge Mukasey is as excellent a choice as we (the country) are likely to get. My wife clerked in the SDNY for four years while I taught at Cardozo Law School (I haven't seen it mentioned anywhere, but the judge attended an Orthodox Jewish day school, Ramaz), while the judge's son was a student there. I have a number of good friends, liberal and moderate Democrats, who are district judges in the SDNY and on the Second Circuit. I can't imagine any of them not supporting him, as do I.

# posted by

William Patry : 9:58 PM

"Bart" DePalma says:

[Scott]: I strongly disagree. Before any decision is to be made, the Senate must ascertain Mukasey’s views about torture and cruel, inhuman or degrading treatment.

This line of questioning will be largely fruitless unless accompanied by a factual basis against which to apply the law.

Well, hell has frozen over. I agree with "Bart". Yes, we should have a "factual basis" against which to evaluate the law. We need to know what our gummint has done to people (renditions, stress positions, sensory deprivation, waterboarding, torture, beatings, homicides, whatever), and under what authority. Yes, I'd welcome some "factual basis" here. The gummint should come clean about what it's done, and then we can sit around and discuss if that's the kind of thing we think our gummint should be allowed to do. Hmmmm ... the word "Nuremburg" rings a bell....

Cheers,

# posted by

Arne Langsetmo : 10:43 PM

The opportunity costs here are worth considering: for example, getting a candidate into the position to restore some modicum of functionality to the DC DoJ; getting someone even halfway competent into position before the Administration runs out the clock; on the other hand, risking putting a shadow-nominee sycophant into position who will allow them to run out the clock; whether they will delay and leave the position unfilled regardless; or, perhaps most salient, whether anything could possibly be worse than Alberto Gonzales or a Bush-appointed interim lackey.

If the White House doesn't change hands in 2008, this is all moot, because the torture issue and all the rest won't get fixed under another GOP President; thus it seems to me that the priority right now isn't reversing the Administration's policies as fast as possible, but merely holding the door open long enough to fix the institutional damage and perhaps hold some of the worst offenders accountable.

Also, the fact that the usual suspects are kvetching about the appointment does bring a little bit of warmth to my heart. Not at all sure what to think about "Bart"'s backhanded endorsement, though -- that more than anything else gives me pause.

Put him up there and ask some hard questions about Administration policy and the mess at the DoJ, and see if he waffles. If he hesitates, toss him out and ask for the next one. At the very least, we might be able to fix the public eye on these issues, and the fact that they've put one nominee out there means it's going to be much harder to stonewall from here on out.

# posted by

A : 1:07 AM

Scott,
You focus on the torture/civil rights aspects of our current crisis. In your opinion, can Judge Mukasey be an honest broker in getting down to the bottom of the US attorney firing scandal?

Also, it seems to me that if I am reading you correctly, a Mukasey AG tenure would lead to more situations similar to the FISA bill that was passed earlier this summer. Mukasey will root out the Bush administration policies that are illegal (or extralegal), and will work with the congress to try to pass legislation that will make the policies legal.

Am I correct? Is this the best we can hope for right now? Make the war on terror illegalities legal?

# posted by

Pseudonymous Blogger : 1:18 AM

(some secondary and somewhat cynical observations)

We keep hearing left and right from members of the legal profession how fair Mukasey tend to be to everybody in the courtroom.

That's real nice of him but isn't being fair to both sides in the courtroom a basic requirement in any legal system, including ours?

So are we to infer from this that fairness in our courts is so unusual that rare judges who practice it deserve special brownie points for it?

---
Fair he may be, but by far the more defining characteristic of this fine jurist is him being a paragon of Draconian justice.

35 years for thinking about doing things as opposed to actually doing something? It follows that actually doing things would force Mukasey to order drawing and quartering, putting to stake, burning alive or something equally nice.

The concept of proportionality, a bedrock of fair judicial systems everywhere is apparently totally foreign to him, so all you defense lawyers out there brace yourself for new potentially interesting era in federal courts.

---
Also that reported fairness to defendants doesn't seem to extend to protecting them from brutality when held in pretrial detention on his orders. Per WSJ when the attorney for one terror defendant complained about his client being beaten in jail, he refused to intervene on grounds that the defendant look fine to him.

That's a judicial irresponsibility of highest order for he surely must know that the art of beating prisoners w/o leaving traces is a standard skill among guards in prisons all across the country.

Besides any allegations of abuse when a citizen is sitting totally helpless and at the mercy of prison guards need to be investigated and acted upon immediately, if that judicial system of ours is to have any integrity to it.

---
And finally I'm growing a bit suspicious of all those people heaping tons of praise on him. The tone is a little bit too laudatory, too saccharine, too sycophantic to be real. Maybe he really deserves it but with all those unfilled positions in the DoJ I'm thinking ...

---
He may turn the department around, the question is how draconian this new department will become in the process.

# posted by

wg : 4:19 AM

The praise for Judge Mukasey from those who know him (and who like me have different politics) reflects how he actually functions. Its not that he should get special brownie points for being what we expect of judges, it is that we have a record upon which we can, to the extent possible, predict how he mightbehave int he future. That was possible with the last AG which is why he was put there and he functioned just as Bush wanted him too. The fact that Mukasey was passed over by Bush for 5 vacancies on the court of appeals and retired rather than wait around for a possible appointment in a Guiliani administration says a lot too in the real world, not a fictional one.

# posted by

William Patry : 6:13 AM

-wq- wrote:

We keep hearing left and right from members of the legal profession how fair Mukasey tend to be to everybody in the courtroom.

That's real nice of him but isn't being fair to both sides in the courtroom a basic requirement in any legal system, including ours?

So are we to infer from this that fairness in our courts is so unusual that rare judges who practice it deserve special brownie points for it?

That's my take on it too.

First point that needs to be made is that it is the job of a judge to attempt to be fair and non-partisan (and their actions need to stand up to public scrutiny). In addition, judges are independent of the executive, and for the most part their own boss. They don't have to deal with political pressures, and can afford to stand up to the executive when the executive is one party to the dispute at bar. When his job becomes one of being the chief law enforcement officer owrking for the maladministration, he may well follow a different course (and think it's just 'doing his job')....

Second point is that Mukasey's ruling that Padilla needed to be afforded legal counsel shouldn't be taken as an encouraging sign; this is really the bare minimum that you should expect as a matter of course from a jurist. The fact that Mukasey thought that Padilla could be held indefinitely as an "enemy combatant" without charges or trial doesn't bode well.

Cheers,

# posted by

Arne Langsetmo : 10:12 AM

arne langsetmo said...

Yes, I'd welcome some "factual basis" here. The gummint should come clean about what it's done, and then we can sit around and discuss if that's the kind of thing we think our gummint should be allowed to do. Hmmmm ... the word "Nuremburg" rings a bell....

Be careful what you wish for, arne.

If what should be done to KSM was put to a popular vote, I would not be surprised if racking to gain information followed by the old English treason punishment of near hanging followed by disembowelment was approved by a majority.

The average American voter is not nearly as squeamish about interrogation as many who post here.

As I posted before, the concept of "torture" is largely in the eye of the beholder. That is why elections matter.

# posted by

Bart DePalma : 10:14 AM

"Bart" DePalma:

If what should be done to KSM was put to a popular vote, I would not be surprised if racking to gain information followed by the old English treason punishment of near hanging followed by disembowelment was approved by a majority.

Of course. You, similarly to many of the RWA contingent, happen to think that everyone thinks like you.

But FWIW, I didn't say that torture ought to be put to a "popular vote", even if it were true that it might be 'popular'. Nor do I think that it's possible to "put [it] to a popular vote" to any legal effect. The U.S. federal gummint isn't run by referendum, and the Constitution is not amendable via that route.

The average American voter is not nearly as squeamish about interrogation as many who post here.

That may be so, but there wasn't a lot of "Hosannahs" and "atta-boys" when the Abu Ghraib pictures came out.

As I posted before, the concept of "torture" is largely in the eye of the beholder. That is why elections matter.

True, and that's why I'll do everything I can to get the RWA neocon/social-'conservative' Republicans turned into the sad historical footnote they deserve to be.

Cheers,

# posted by

Arne Langsetmo : 11:22 AM

There appears to be lower expectations here. This pick is good since ... the guy's a professional that won't embarass us. In fact, he might actually do a good job as to the mechanics of the situation.

[There are such people in the Bush Administration. Some left it for that very reason ... they couldn't take the rest any more. Or, were kicked out by those who didn't like competency.]

Somewhat depressing. Comments from various lawyers suggest, yes, the bona fides expressed here as to his fairness is sadly notable.

I'm willing to accept he is a decent choice given what we are likely to get. Horton clarified the limits to administration discretion. But, I fear a quick confirmation will let the administration off the hook.

We saw other credible choices get in and little changed occurred. A full vetting and some hope that investigations will continue (and continual pressure from the Congress ... noises suggests people like Schumer don't agree this is necessary) is necessary.

BTW, the bait and switch on the acting AG must be noted.

# posted by

Joe : 1:23 PM

Looks like the Dems are going to hold Mukasey hostage to their demands for privileged Executive documents. It doesn't appear that the Dems have much confidence in prevailing on the executive privilege issue in the courts.

# posted by

Bart DePalma : 3:50 PM

joe:

I'm willing to accept he is a decent choice given what we are likely to get. Horton clarified the limits to administration discretion. But, I fear a quick confirmation will let the administration off the hook.

We saw other credible choices get in and little changed occurred.

Powell --> Rice
Ashcroft --> Seedy

Actually, I think the second round has not been noticeably better and in some cases much worse (and its a rare day I say that about the likes of Ashcroft, just to show how low the bar has gotten).

Cheers,

# posted by

Arne Langsetmo : 4:22 PM

"Bart" DePalma:

Looks like the Dems are going to hold Mukasey hostage to their demands for privileged Executive documents. It doesn't appear that the Dems have much confidence in prevailing on the executive privilege issue in the courts.

That's not very astute, "Bart". Going through the courts is time-consuming, and the maladministration just wants to run out the clock. This is one way to bring the issue to a head in a timely manner.

Cheers,

# posted by

Arne Langsetmo : 4:25 PM

Scott:

"First, the president is entitled to nominate a candidate who represents his views on legal policy."

First, just because the president nominates somebody, that doesn't mean that they are should be confirmed. Two entirely separate things.

Second, after six years of unprecedented criminality,Bush doesn't *deserve* anything. His last attorney general set new lows, and he had to beat out Nixon's guy to do that.

Scott, in your professional career, is there *anybody* with a job record even one-fourth as bad as Bush, about whom you've written that his or her judgement is worth one iota of respect?

Could you please name for us such a law student whom you said deserved a job? The law professor so bad whom you recommended as a colleague?

# posted by

Barry DeCicco : 7:48 PM

By the way, Bart, I've been around this with you before, but there is actually rather extensive law, both domestic (28 USC 1350 cases as well as various torture statutes) and international, as to what constitutes torture.

It's a common right wing spin tactic to say that nobody really knows what it is (but of course, inconsistently, whatever the Bush Administration is doing cannot be torture). That simply isn't true.

And that gets us back to my point-- there are plenty of people who indeed believe that torture-- i.e., the type of thing that clearly violates international and domestic law-- is perfectly permissible in certain scenarios of terrorist interrogation.

# posted by

Dilan : 9:23 PM

Dilan:

And that gets us back to my point-- there are plenty of people who indeed believe that torture-- i.e., the type of thing that clearly violates international and domestic law-- is perfectly permissible in certain scenarios of terrorist interrogation.

And my point too, albeit underappreciated by at least some here. Let's see what they're doing, and see if it comports with the law. And if the laws are being violated, but enough people (or at least legislators) think they need changing nonetheless to allow the illegal practises, so be it, but let's do so within the law and aboveboard so people can see what we do and why. And I'd reiterate my position on the "nuclear option": If you think you need to violate the law, then I guess it's up to you to do it ... but then be a responsible person and own up to what you did and take the punishment (if any). Civil Disobedience 101. None of this dodging behind a "state secrets privilege".

Cheers,

# posted by

Arne Langsetmo : 11:17 PM

How come no one cares that the Constitution says, with the "advice and consent of the Senate?"

Just a response to First, the president is entitled to nominate a candidate who represents his views on legal policy.

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