Balkinization  

Wednesday, January 30, 2008

Mukasey: "I can't contemplate any situation . . . "

Marty Lederman

In response to questions from Senator Specter concerning when, if at all, the President may rely on his Article II authorities to decline to abide by statutes or treaties, the Attorney General testified this morning that "I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

Oops. Perhaps the Attorney General didn't get the memo. Just two days earlier, the President issued a signing statement asserting the authority to "construe" (i.e., to ignore) certain provisions of the National Defense Authorization Act for Fiscal Year 2008 so as not to "inhibit" exercise of his Article II authorities. (See the detailed discussion here.) Judge Mukasey's Office of Legal Counsel and Office of Legislative Affairs undoubtedly cleared that signing statement (or even helped to draft it). Alas, there must have been bugs in the internal DOJ distribution system . . . .

Comments:

For me, the AG's confidence here and immunity from correction rests on this famous premise: "Well, when the president does it that means that it is not illegal."

The premise runs through his testimony. He dallied with the Nuremberg defense in colloquy with Whitehouse; objected to Spector's proposal to focus accountability for FISA violations on the executive; couldn't denounce waterboarding because it goes on; can't imagine that CIA acts videotaped, then covered up, might just be worth investigating.

A bright thread runs through these weasel words. Nothing turns on what is or isn't set out in OLC memos. They are no more than wallpaper on a brick wall whose placement is in the President's discretion, the "what is" that by definition is right.

He said at one point that he wears just one hat. I imagined his headgear as conical.
 

Marty,

I think Occaisional Observer has this exactly right, and let me add:

We don't actually have any reason to suppose that OLC is even involved here beyond having written the undisclosed memos, nor do we have any reason to suppose that those memos are any more honest or sound than those which have been disclosed.

What we do have reason to believe is that Mukasey is taking dictation from David Addington.

And we know for a fact that Mukaseys claims are patently false on their face.

He mentions a list of acts which are clearly offenses, including rape and maiming, and claims these statutes are distinct from waterboarding, yet the act of waterboarding someone can also be charged as an assault p. 18 USC 113 or war crime p. 18 USC 2441.

He states that no one thought they were committing a crime, but the fact remains they commit an offense with the intent to inflict suffering on the victim, and it is equally a fact that those offenses were part of larger conspiracy to commit war crimes and other offenses against these prisoners generally.

The man is lying, and he is doing so with the clead intention of obtructing Congress and aiding the original conspiracy that began with the 2001.09.25 Yoo Memo and the 2001.11.13 PMO.

The credible assurance of a bank robber to the driver of the getaway car that no crime is in fact being committed is a defense which is properly for a jury to decide.

I was very disappointed in the questioning today.
 

In response to questions from Senator Specter concerning when, if at all, the President may rely on his Article II authorities to decline to abide by statutes or treaties, the Attorney General testified this morning that "I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

This is a facially correct non answer.

The President has the power to withdraw from treaties, so treaties obviously cannot forbid an exercise of his Article II power.

In the case of a statute which unconstitutionally attempts to limit the President's Article II power, such a statute would be unlawful and the President again would not be violating the law.

In the case of constitutional statutes, this statement can be understood to simply say that the President would not attempt to exercise his Article II power to violate the law.

Marty is not having any more luck sticking forks in Mr. Mukasey than the Senators with which the AG is toying.
 

Bart,

That depends on the treaty; for example, the Geneva Conventions specify the procedure for a denunciation, and so such denunciation has been made.

As for statutes, where has the administration made any credible claim that anything in Title 18 is unconstitutional in this context?

And can you cite any example of a criminal statute that was held unconsituional becasue it infringed on the Presidents authority under Art. II?
 

At the end of the hearing, Durbin asked Mukasey if a Bradbury memo denounced as shameful by Jim Comey -- no flaming liberal -- had any bearing on Bradbury's qualifications to head OLC.

Mukasey, previously asked to read the memo, dodged the question whether he ever had, with blatant cynicism. He then declared the memo irrelevant to the matter: anyone can make a mistake, and, besides, it's not current policy.

Bradbury is de facto head of OLC despite having been rejected by the Senate. Questioned about the legality of this arrangement, Mukasey was just as blithe.

At OLC, a minion whose wallpaper pleases his masters advances to the top, however garish his pattern may seem to nosey outsiders. The ring of Mukasey's words is unmistakable: "It's our wall, dammit, and you're not his boss. Besides, we repapered. What the hell else do you want from us?"

This is the essence of rule by men and not of law.
 

"I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

When Mukasey says "the law", does he mean "the words of a statute" or "the supreme law of the land" as defined by the supremacy clause? The supremacy clause defines the supreme law of the land as "[the] Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States". If a statute is not pursuant to the Constitution, then it isn't "the law" in this sense. So if a statute invades the President's Art. II authority, the statute is not pursuant to the Constitution, and is therefore not "the law". Consequently, no one can "contemplate any situation in which this President would assert Article II authority to do something that the law forbids" because the President's authority under the "the law" (within the meaning of the supremacy clause) must be coextensive with the President's inherent authority under Art. II (regardless of the words of any statutes). This could be a plausible construction of the AG's statement and would certainly be a slippery way to avoid answering the real question.
 

I am not sure what Mukasey meant by this because, read literally, it is either meaningless (as DM points out) or plain wrong (every President has asserted an Article II right to not comply even with clear statutory obligations under some circumstances). Regardless of what he meant, though, the signing statement is not inconsistent, since it merely states that the President will interpret the statute in accordance with his view of Article II.
 

So.....do we all just rest easy, waiting for this unpleasantness to end? What happens after that?
 

Prof. Lederman, from the post:

"I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

Wrong parsing, Marty. What he means is: "I can't even contemplate -- much less investigate -- any situation in which this President would assert Article II authority to do something that the law forbids ..."

As below, I have a similar post up on this latest prevarication from Dubya's new consigliere, and I invite any wishing to dabble in "Bartesque discussion" to do so there.

Cheers,
 

Sorry, didn't mean to suggest that quoted sentence was Prof. Lederman's; it was of course AG Mukasey's.....

Sorry.
 

Post a Comment

Older Posts
Newer Posts
Home