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On the legal front this week, we have Michael Mukasey's can't-pin-me-down testimony of yesterday, as Dahlia reported. And also this dismaying report, via his lawyer and the LA Weekly's blog, that a Guantanamo prisoner has contracted AIDS in the camp. If this is true, it's an awful example of the individual harms the Bush administration has caused with its grim insistence that the rule of law and the war on terror shall not mix.
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I am not sure Mukasey had any choice, Emily. The op-ed in today’s New York Times by Tom Kean and Lee Hamilton, the co-chairmen of the Sept. 11 commission, was a clarion call for just such an investigation. Here you have the bipartisan pronouncement that, in no uncertain terms, both the CIA and the White House obstructed the commission’s work and lied about it: “[G]overnment officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the [sic] greatest tragedies to confront this country. We call that obstruction.”
Unlike so many of the other Bush-related scandals that have seemed to just dry up or blow over, the destruction of the torture tapes looks more and more like a serious criminal act. If the White House and the CIA deliberately lied to and concealed evidence from the Sept. 11 commission, as well as various trial courts, John Durham, tasked with heading up this investigation, will be looking at very serious charges.
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A couple of weeks ago, I criticized Attorney General Michael Mukasey for stonewalling Congress over its investigation of the destroyed CIA tapes, and for apparent flaws in the structure of the internal Justice Department probe. I'm feeling better about him today, because the AG has opened a criminal investigation into the tapes (until now, what was going on was a preliminary look into whether there should be such a criminal investigation). Mukasey has appointed a Connecticut federal prosecutor, John Durham, to take the lead in the case, which should mean greater independence from DoJ. These are good moves—both for finding out what actually happened (the NYT has gotten that off to an impressive start) and for restoring the department's Gonzales-battered integrity.
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How inopportune for the Democrats that the face of their fund-raising efforts in the Senate is New York's Chuck Schumer, of Michael Mukasey fame. "Slightly better on water-boarding,'' is not much of a rallying cry, and liberal activists are urging those who hoped that a Democratic-controlled Congress might toe the line on torture to withhold their contributions to the party.
Specifically, contributions to the Democratic Senatorial Campaign Committee, which Schumer chairs, as a reprimand for his judiciary committee swing vote today, in favor of Bush's nominee for attorney general. Of course, Mukasey already seemed as much Schumer's guy as the president's, since Mr. DSCC kept bragging that the nomination was all his idea—right up until Mukasey refused to call waterboarding torture.
In their intensity, those who want to see Schumer punished—as a deterrent—remind me of my family of Midwestern conservatives, nocturnal Republicans who'd stay up all night decrying the Trilateral Commission. When my Aunt Ginny stopped by our place one day to report that the Commies were coming, a schoolmate who didn't know this happened all the time in my house burst into tears. And oh, Gin took fund-raising letters from her party personally; Ronald Reagan was counting on her, she'd say.
So I thought of her, not only with fondness but fresh kinship, as I tore into the message in my inbox this morning, from Schumer's Democratic Senatorial Campaign Committee. "Dear MELINDA,'' it began; see, they know me! Surely, CHUCK was writing to explain himself. Which was great, because I had a hard time following that part in his New York Times op-ed about how we know for sure Mukasey would be better than whatever caretaker AG we would otherwise get. Skip the advice and consent now, in other words, so as to maybe be able to offer it later—when something really important is at stake?
Let's see here, hmm, the letter offers a "little Senate update, a 10-second strategy session,'' but mentions nothing about the matter at hand. It does say that "2008 is the Halley's Comet of elections.'' Oh, and that "we can nail the trifecta next year if we start filling our war chests now.'' But through some oversight, shy Schumer's name is not even on the thing, which is signed by James Carville.
As a result, I'm stuck parsing the op-ed, in which Schumer explains that "Judge Mukasey's refusal to state that waterboarding is illegal was unsatisfactory to me.'' But, no worries, he goes on to say, because Congress is considering a law that would explicitly ban the practice. Like I'm considering the conclusion that fund-raising is the only reason we even have two parties.
Last week, Schumer argued that Mukasey is "the best we can get'' from President Bush: "From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping.'' But who is this ‘we' again? Count me out, along with those online warriors who find today's plea for money so resistible.
"For the Senate to make a bold declaration about torture and waterboarding by rejecting him is appealing,'' Schumer says in his op-ed. Only, not appealing enough; it is just so embarrassing getting all worked up over the fate of the Republic, like my out-there Aunt Ginny and the whole of the blogosphere. Yet if not over the notion that the United States does not stoop to torture, then when?
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Hillary jumps the same way as Obama:
"I am deeply troubled by Judge Mukasey’s continued unwillingness to clearly state his views on torture and unchecked Executive power.
The Attorney General is the chief defender of the rule of law in our country. After Alberto Gonzales's troubled tenure, we cannot send a signal that the next Attorney General in any way condones torture or believes that the President is unconstrained by law. When we leave any doubt about our nation’s policy on torture, we send a terrible message to the rest of the world. Judge Mukasey has been given ample opportunity – both at his confirmation hearings and in his subsequent submission to the Judiciary Committee – to clarify his answers and categorically oppose the unacceptable interrogation techniques employed by this Administration. His failure to do so leaves me no choice but to oppose his nomination."
Meanwhile, the Democrats on the Judiciary Committee await Mukasey's answers to the questions they've asked him.
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In a press release today, Obama said of Mukasey: “While his legal credentials are strong, his views on two critical and related matters are, in my view, disqualifying. We don't need another attorney general who believes that the President enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security. And we don't need another attorney general who looks the other way on issues as profound as torture. Judge Mukasey's professed ignorance of the debate over the propriety of practices like “waterboarding,” or simulated drowning, as a means of interrogation, was appalling."
Now what? Do other Democrats--among them Hillary Clinton--jump the same way? Or do they (ie some of the senators on the Judiciary Committee) keep trying to look like they're pressing Mukasey while planning to wave him through?
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If Mukasey does say now that waterboarding is torture, should that be enough for the Democrats to wave him through? What about his testimony on the presidents power to act outside statutory boundaries with regard to interrogation and wiretapping? And even if Mukasey were to change his tune now on all these fronts, what does that really mean, since his previous statements allign so closely with his record as a judge and his writings? The Democrats were awfully quick to say that his confirmation was virtually assured. Now that's not looking so wise.
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After Phil and I wracked our brains to understand why Michael Mukasey wouldn’t just admit that waterboarding is torture, and in light of Rudy Giuliani’s weaselly parsing of the same question, it’s heartening to read this morning – via the AP -- that some of the Senate Democrats seem willing to use that as the basis for a no vote on Mukasey.
Good to hear. There is just no good reason to call this an open question, a matter of interpretation, or something too secret to discuss rationally. In the same regard see this great new piece on Rudy and executive powers by Rachel Morris. Talk about things that make you go hmmmmmm.
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At today's confirmaton hearing for Michael Mukasey, Bush's pick for attorney general, Sen. Dianne Feinstein asked questions about a disturbing ruling Mukasey made as a federal judge in the Southern District of New York. Here are the facts (I just looked them up): In 1983, a woman police officer was sexually assaulted. She later testified that the attack took place over six hours and was by a fellow officer. But when she initially reported the assault, she said she'd been attacked by a man she'd met at a laundromat instead of naming her assailant. A few days later, she named the male officer. He denied the accusation and passed a lie dectector test. So did she. Still, she was charged criminally for having falsely stated that she didn't know the man who'd attacked her. She was also suspended from the NYPD without pay, and eventually fired. Her alleged rapist retired with his police pension intact.
Two years later, the woman brought a sex discrimination suit. Judge Mukasey ruled that she couldn't bring her case to a jury because there wasn't enough evidence to support it. The U.S. Court of Appeals for the Second Circuit reversed, saying that it was the jury's job to decide whether the allegations were true and "whether the discipline meted out to [the woman officer] was unlawfully disparate to that received by her male fellow officer." A trial followed. The jury ruled for the woman and awarded her more than $260,000 in damages. (Her name is in the record, but somehow I don't feel right about publishing it here--a whole different issue.) For a second time, Mukasey thwarted the woman's claim, this time by setting aside the jury's verdict. Mukasey said that "no reasonable jury could infer an unconstituional pattern or practice of gender discrimination" from the facts. (I'm quoting the Second Circuit again.) And he ordered a new trial. Also for a second time, the Second Circuit reversed. It held that Mukasey's grant of a new trial was an abuse of discretion.
Feinstein wanted to know if Mukasey considered this an "unusual" case. Mukasey said that to call it unusual was "a stark euphemism." And then he talked about all the women law clerks he has hired--"each of them hired on the merits, on the merits." He also talked about his effort to get a woman admitted to an all-male club he used to belong to, and leaving the club when he failed.
But his handling of the sex discrimination case seems awfully rigid, doesn't it? He got knocked down by the Second Circuit, and he insisted he was right, at this woman's expense. Trial judges aren't often that stubborn. I wonder what was going on here.