Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Marty Lederman [link]
With regards to the CID/torture question, Mukasey seems to place a lot of importance on two prerequisites for developing the "informed opinion" necessary to avoid putting people in danger:
1) confirmation as attorney-general
2) the briefing that he receives after confirmation
So we have to confirm him to get a straight answer, and even then, the answer will be based upon information he learns in briefings by...?
Another oddity in that section is his treatment of the Army field manual. First, he cites it to point out that "no person" held in a DoD facility can be subjected to any interrogation techniques prohibited in the manual. Later, in response to a direct question about the same manual, he states that the manual is "principally designed to prescribe standards of conduct governing" POWs protected by the Third Geneva Convention, and therefore different legal standards would apply in the case of suspected members of Al Qaeda.
Are we to believe that suspected terrorists are no longer to be considered people?