It is extraordinary that a man who rightly would have been confirmed with overwhelming support had he been President Bush's first nominee for attorney general may now be denied that post in the waning months of the administration. Just as extraordinary is Bush's campaign to salvage the nomination of Michael Mukasey. Thursday, in a rare Oval Office meeting with reporters and later in a speech before the Heritage Foundation, Bush bemoaned the imperiled state of Mukasey's nomination without one iota of self-awareness that the nomination is in trouble because of the president's own warped policies on torture.
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Mukasey is being judged not on his merits but as a proxy for Bush. Yet critics of the nomination, while understandably disturbed by Mukasey's unwillingness to label waterboarding illegal, may be working against the last, best hope to see the rule of law reemerge in this administration.
Mukasey's 172 pages of written responses to senators' questions leave no doubt that he is a staunchly conservative lawyer. He believes the Second Amendment bestows an individual right to bear arms. He recoils at the idea of appointing a special prosecutor when, in his words, the "members of the Department have the integrity and ability to discharge whatever responsibilities they may have." He embraces an expansive vision of presidential power that allows the president to ignore an "unconstitutional law" if it infringes on the powers of the executive.
This last view, when put into action by unqualified sycophants such as former attorney general Alberto Gonzales, leads to extreme and dangerous power grabs, not to mention grotesque distortions of the law that produce such results as the notorious 2002 "torture memo."
But there are key differences between Gonzales and Mukasey. Gonzales, whose confirmation we opposed, had a hand in crafting the policy that encouraged Bush to ignore U.S. law and treaty obligations on torture prohibitions. Mukasey did not. Gonzales endorsed the go-it-alone approach that cut Congress out of a significant role in warrantless surveillance and the creation of military tribunals. While jealously guarding the president's prerogatives, Mukasey seems to understand that the president's power is strengthened - not diminished - when he acts in concert with Congress, and he has vowed to advocate such an approach. Gonzales lacked the moral compass to challenge Bush and some of his stronger-willed advisers. Mukasey has demonstrated the ethical fortitude required of an independent attorney general.
As we said this week, it is a shame for America to be led by a president who has countenanced waterboarding and other interrogation methods that most Americans would understand as torture. Mukasey got it right when he called waterboarding "repugnant"; like many senators, we wish he had also clearly stated that it is illegal. But to do so would have been likely to bring him into conflict with existing Justice Department memorandums that have been used by CIA interrogators and others to legitimize their actions. Mukasey has promised a careful review of each of those memorandums; if he is rejected, no nominee is likely to promise more in advance of confirmation.
Those senators who truly want to bring the nation back from the disgrace of Bush's interrogation policies should do two things. They should confirm Mukasey, who is far more independent and qualified than either of Bush's previous two nominees. And they should do something which, for all the rhetoric, they have so far declined to do: ban torture, by passing the National Security with Justice Act sponsored by Sen. Joe Biden, D-Del. The act would limit all United States personnel - military and civilian - to using only interrogation techniques authorized by the U.S. Army Field Manual on Intelligence Interrogation, which expressly prohibits waterboarding and which military leaders have said gives them the tools they need to get reliable information from difficult subjects.