Why Attorney General Nominee Michael Mukasey Should Be Confirmed, Even Despite His Refusal to Condemn Waterboarding as Illegal Torture

By EDWARD LAZARUS

Thursday, Nov. 08, 2007

I was in Berkeley, California last week when the news broke that Senators Charles Schumer and Diane Feinstein were going to vote to confirm former U.S. District Judge Michael Mukasey, President Bush's pick to replace Alberto Gonzales as U.S. Attorney General, despite Mukasey's persistent refusal to condemn "waterboarding" as a form of illegal torture.

Schumer's and Feinstein's announcements assured the public that Mukasey would be confirmed despite what hand been mounting opposition. And the reaction in the still-lefty enclave of Berkeley was predictable: that the Democrats (or at least the moderate ones) had once again shown that they lack the moral and political courage to stand up to the White House on issues relating to national security.

In the heat of the moment, I found myself nodding in agreement. How could the Democrats let Mukasey (and Bush) off the hook? American law had treated waterboarding as a war crime for more than 100 years, and prosecuted both our own soldiers and those of other nations when they had subjected prisoners to this form of simulated drowning. Surely, any candidate to be the nation's highest law enforcement officer should renounce such a heinous practice, even if (or perhaps especially because) we had resorted to it as part of the war on terror.

On reflection, however, I think the Schumer/Feinstein position is defensible, principled, and perhaps even "right," regardless of whether one finds Mukasey's dodging and weaving on the waterboarding issue to be repugnant. That's because Mukasey is a good choice for AG on many very important levels, and a better choice, by far, than could be have been expected of an Administration with a history of cronyism. On balance, then, despite the importance of the torture issue, it makes sense to confirm him.

What Mukasey Has Said About Torture Generally, and Waterboarding in Particular

In analyzing this issue, it is crucial to review what Mukasey has been willing to say about torture generally and waterboarding in particular. He has said that torture is illegal and that the United States cannot lawfully engage in torture. Moreover, he has never said that waterboarding is not torture. On the contrary, he has made clear that it may fit the definition of torture, depending on exactly what the term "waterboarding" actually has actually meant in each given circumstance where the technique, or something like it, has been used. Most importantly, he has said that Congress has the authority to outlaw waterboarding - and that, if Congress were to do so, the President would not have the power to ignore such a law.

It is easy to understand those critics who find these carefully-parsed answers to be equivocal and unsatisfactory - perhaps a bit Bill Clintonian in their quibbling over definitions. In contrast, the McCain position on this issue - waterboarding is torture, always has been, end of story - has significant appeal given the historical characterization of this interrogation technique.

But is it really a nomination-killing offense that, in his confirmation hearing, Mukasey has reserved judgment on how to characterize waterboarding, given that he knows that at least some U.S. government employees engaged in something that has been described as waterboarding, yet very likely does not know exactly what conduct these people engaged in? I don't think so.

Two Key Rules That May Help Us Assess This Nomination and Others

My analysis begins with the confirmation process itself. As has been obvious for a long time, this process has become so partisan that many good people now shy away from government service, rather than face the very real possibility of having their careers and reputations ruined as one political party or another seeks some narrow advantage.

What the system needs, at a minimum, is a set of "Golden Rules" - rules by which both Democrats and Republicans alike will play, regardless of which party controls the White House and the Senate at any given time.

It is far beyond the scope of this piece to lay out what a full set of such golden rules would look like. But two such rules do come to mind in assessing the Mukasey nomination.

First, the standard for Senate confirmation of Executive Branch appointees should be lower than the standard for confirmation of judicial nominees. This two-tier approach follows from the simple fact that, when appointing Executive Branch officials (such as the Attorney General), the President is picking someone for his (or her) own team - as well as someone whose tenure in office is, at the outside, co-extensive with the President's own.

By contrast, judicial nominees, if confirmed, serve in an independent branch of government and enjoy life tenure. Common sense tells us that the Senate should apply greater scrutiny to those presidential nominees who will be in a lifelong position to reshape the branch of government that serves as the referee between the legislative and executive branches.

Second, Senators should be extremely reluctant to force nominees to answer questions whenever it can reasonably be said that the answer depends on facts that the nominee can learn only after assuming office. This is especially true when the Senate has independent authority to make policy in the area at issue, and in areas where the Senate can revisit the issue once the nominee assumes office.

This second rule has several justifications. To begin with, it is basically unfair to expect nominees to opine on controversial issues without a deep understanding of the facts and circumstances that led the Administration the nominee will be joining to take the position that it has adopted. Of course, if a nominee comes from inside the Administration and was involved in the decision-making, then the questions are fair game - but that is not the situation with Mukasey.

No less important, the Senate should generally refrain from shirking its own responsibilities at the expense of a nominee. It is all too easy for Senators to score symbolic points during nomination hearings while failing to obtain the result they claim to favor through the harder work of legislation. In this case, where is the Senate's anti-waterboarding bill? Why aren't Senators who oppose Mukasey sponsoring it?

Applying the Two Key Rules Strongly Suggests Mukasey Should Be Confirmed

Applying these principles to Mukasey's nomination tips the scale in favor of confirmation. By all appearances, Mukasey is exactly the kind of smart, independent-minded person that the Department of Justice desperately needs as it begins the massive project of restoring internal morale after the U.S. Attorney firing scandal and other DOJ misadventures.

To be sure, Mukasey leans towards the Administration's crabbed vision of civil liberties in the age of terrorism. But, crucially, he seems to have repudiated the single most noxious and dangerous doctrine espoused by Bush and former Attorney General Gonzales - the doctrine that, in the name of national security, the President can simply override the directives of Congress. This is implicit in Mukasey's concession that Congress can outlaw waterboarding and that, if it did, the President would be bound to abide by that law.

All told, then, Mukasey shares an antiterrorism vision with the President appointing him. But he comes to this on his own, not as a Bush toady, and he does so in a measured way that, crucially, would subject the President to the Separation of Powers doctrine that is indispensable to our democracy. Moreover, he seems otherwise well-qualified for a difficult job.

With respect to the issue of waterboarding, it isn't as though Mukasey has endorsed or even conditionally endorsed the practice. Quite the opposite: He has expressed concerns. The Senate will have every opportunity to test Mukasey's sincerity and revisit the issue with him once he assumes office and can no longer claim ignorance of the facts. The public deserves an open and honest answer on this issue. Delivering that answer will be an important test for Mukasey when the time comes - and, depending on what he says, Congress can decide whether additional anti-torture legislation is necessary.

But in the meantime, the Department of Justice is in desperate need of leadership across a broad front. And it is reasonable to decide that Mukasey's refusal to give a satisfying response on one issue, albeit a very important issue, should not derail Bush's otherwise surprisingly good choice.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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