172 Pages of Answers from Judge Mukasey

Marty Lederman

here. Have at it in the Comments section (and please confine your comments to Judge Mukasey's answers; do not bother critiquing one another!)

In response to a question from Senator Feingold (pp. 102-03), Judge Mukasey states that DOJ's obligation in tendering legal advice to the President is to provide "the best view of the law," rather than "the most aggressive interpretation." If he truly believes that, and takes it seriously -- a very big "if," mind you -- he might overtake Jack Goldsmith's record for most OLC opinions repudiated within a single Administration. Don't hold your breath.

He also opines (page 103) that he doesn't "yet" have a view on whether Congress has the constitutional power to enact legislation setting a deadline for withdrawal of troops from an armed conflict.

Like AG Gonzales, Mukasey is unable to say (pp. 124-125) whether it would violate Common Article 3 or otherwise be unlawful for enemy forces to subject (non-uniformed) U.S. detainees to "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution." That's how far we've fallen.

On page 164, he writes in response to a question from Senator Graham that it is "complicated" whether the President may order a violation of Common Article 3 that is not made criminal under the War Crimes Act "because a non-self-executing treaty obligation stands on a different footing from an Act of Congress." This is, I think, wrong, insofar as Judge Mukasey is suggesting that the President is not constitutionally obliged, under the Supremacy Clause and by his Take Care duty, to comply with the Geneva Conventions unless and until Congress enacts implementing legislation. As Justice Kennedy properly noted in Hamdan, Common Article 3 "is part of a treaty the United States has ratified and thus accepted as binding law." Period.
Posted 9:32 AM by Marty Lederman [link]