Jury Still Out On Judge Mukasey

October 26, 2007

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Jeremy Richmond, and Ali Frick

ADMINISTRATION

Jury Still Out On Judge Mukasey

Judge Michael Mukasey entered his Attorney General confirmation hearings with the support of leading members of the Senate Judiciary Committee, impressive legal credentials, and experience on national security issues. After his first day of testimony, members of the Judiciary Committee seemed pleased with his responses, particularly when he called a 2002 Bush memo authorizing torture "worse than sin." In an about-face, however, Mukasey jeopardized his confirmation the next day when he made questionable statements on torture and the president's right to ignore laws passed by congress. These statements raised serious concerns among members of the Judiciary Committee. Sen. Arlen Specter (R-PA), the committee's ranking member, has since joined with 10 Judiciary Committee Democrats "in questioning the basis for" Mukasey's assertion that the president "can act outside the law" on national security issues. Sen. Patrick Leahy (D-VT), the Judiciary Committee's chairman, has "refused to set a date for the panel to vote on the nomination" until Mukasey responds in writing to all the senator's questions. "I've heard from a couple of Republicans on the committee and that they're extremely troubled" by Mukasey's answers as well, said Leahy. Mukasey's nomination ultimately hinges upon his responses to these important questions.

REFUSING TO CALL WATERBOARDING 'TORTURE': On the first day of his confirmation hearings, Mukasey strongly denounced the use of torture, stating that torture is "antithetical to what this country stands for." When pressed the following day on what exactly qualified as torture, however, Mukasey's answers became less convincing. He refused to directly classify the practice of waterboarding -- in which a suspect has water poured over his face to simulate drowning -- as unconstitutional, merely stating that "if it amounts to torture, it is not constitutional." Sen. Sheldon Whitehouse (D-RI) called the response "purely semantic" and "a massive hedge."As Sen. John McCain (R-AZ) has pointed out, there's no question that waterboarding is torture: "[T]o make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture." Waterboarding is not allowed in army interrogations, and though it has yet to be outlawed by the CIA, "a 2004 classified report prepared by CIA Inspector General John Helgerson concluded the technique 'appeared to constitute cruel, and degrading treatment' under the Geneva Conventions.'" Sen. Dick Durbin (D-IL) said that the classification of waterboarding as torture is a "seminal issue." "Asked if his vote depends on whether Mukasey equates waterboarding with torture, Durbin answered, 'It does.'"

PRESIDENTIAL AUTHORIZATION OF ILLEGAL ACTS: Although much attention has been paid to Mukasey's decision not to classify waterboarding as torture, there were other parts of his testimony that elicited cause for concern. During the hearing, Leahy asked Mukasey about the legality of the president's warrantless wiretapping program and whether Mukasey felt it was in violation of the Foreign Intelligence Surveillance Act (FISA). "[Mukasey] responded that the Constitution authorizes the president to ignore or disobey statutory law when he thinks it necessary 'to defend the country.'" Mukasey's opinion that the President can operate outside of the law when it comes to FISA contradicts his previous statements that the President could not authorize torture, which is also illegal. Leading human rights and public policy organizations, including Amnesty International, the Center for American Progress Action Fund, Human Rights Watch, and others, wrote a letter to the Judiciary Committee stating that "Mukasey gave deeply troubling answers on the question of whether or not the President can, in the exercise of his Commander in Chief powers, authorize an individual to commit what would otherwise be illegal acts. Muaksey seemed to espouse many of the same arguments of the infamous 'torture memos'"written by Alberto Gonzales' Justice Department.

WEAK ON DETAINEE RIGHTS: Mukasey also did not take a strong constitutional stand in favor of detainee rights. When asked by Leahy if he would like to grant habeas corpus to "unlawful enemy combatants," Mukasey responded, "I would not advise the President to grant rights beyond those that they already have." Mukasey also refused to take a firm stance on the need to close the Guantanamo Bay detention camp. Mukasey said, "I'm prepared to recommend to the President that we take the responsible course in dealing with the people at Guantanamo. "I can't simply say we have to close Guantanamo," he said. A Mukasey Justice Department may not represent a significant departure from the Gonzales Justice Department if Mukasey cannot assert the independence from the White House that is needed.

IRAQ -- FOUR-FOLD INCREASE OF U.S. MILITARY AIR STRIKES IN IRAQ UNDERMINES COUNTERINSURGENCY STRATEGY: Earlier this week, USA Today reported that "the U.S. military has increased airstrikes in Iraq four-fold this year, reflecting a steep escalation in combat operations aimed at al-Qaeda and other militants." The increased use of air strikes, which often occurs in densely-populated areas, has been condemned by the U.N. Assistance Mission in Iraq. Though October "has seen the smallest number of Americans killed in Iraq than any other month since March 2006," the trade off for "greater safety for our ground troops" through the increased use of air strikes means an increase in "local hostility." Such an increase in hostility undermines the counterinsurgency strategy of Gen. David Petraeus. As the U.S. Army's field manual on counterinsurgency, which Petraeus co-authored, states, "an air strike can cause collateral damage that turns people against the host-nation government and provides insurgents with a major propaganda victory." Max Bergmann of the National Security Network notes that "all this talk about a new counter-insurgency strategy -- adopting less kinetic approaches, emphasizing the security of Iraqis, the need for U.S. Soldiers to take more risk and operate under stricter rules of engagement, etc., etc. - seems really hollow if at the same time, we are lobbing four times as many bombs from the air then we were before."

CLIMATE CHANGE -- PERINO HIGHLIGHTS 'PUBLIC HEALTH BENEFITS' OF GLOBAL WARMING: On Wednesday, White House Press Secretary Dana Perino responded to reports that the White House "eviscerated" Center for Disease Control director Dr. Julie Gerberding's Senate testimony on the "Human Impacts of Global Warming." She claimed that "the decision" was "to focus that testimony on public health benefits" of climate change. "There are public health benefits to climate change," asserted Perino, as it "would help those individuals" who "die from cold-related deaths every winter." But the negative "health impacts of climate change are potentially huge," outweighing the "benefits." "Many of the most important global killers are highly sensitive to climatic conditions. Malaria, diarrhea and protein-energy malnutrition together cause more than 3 million deaths each year," notes the World Health Organization. In fact, in the unredacted version of Gerberding's testimony, the only mention of "public health benefits" related to climate change are a result of "activities needed to protect Americans from the health effects of climate change."

IRAQ -- STATE DEPARTMENT AWARE OF BLACKWATER MISCONDUCT IN 2005: Yesterday, U.S. Ambassador to Iraq Ryan Crocker defended the embattled defense contractors Blackwater USA, even as he acknowledged that the Sept. 16 shootings in Baghdad when Blackwater employees shot and killed 17 Iraqi civilians were "horrific." "I continue to have high regard for the individuals who work for Blackwater...That said, the incident in September was...horrific," he said. But as Congress steps up its investigations into Blackwater's misconduct, the State Department continues to stand by the company. This week, Secretary of State Condoleezza Rice "quietly promoted two senior staffers who directly oversaw" Blackwater operations. Rice and Crocker's defense of the company come even as newly disclosed internal State Department emails show that the department was aware of alleged Blackwater misconduct as early as 2005. "In one instance, internal emails show that State Department officials tried to deflect a 2005 Lost Angeles Times inquiry into an alleged killing of an Iraqi civilian by Blackwater guards." "Give [the LA Times] what we can and then dump the rest on Blackwater," a State official wrote. "We can't win this one."

The White House has agreed to let Senate Judiciary Committee leaders Patrick Leahy (D-VT) and Arlen Specter (R-PA) "view the legal memos underpinning the administration's warrantless surveillance program" so they can consider legislation that would give telecommunications companies immunity from privacy lawsuits.

Former Sen. Fred Thompson (R-TN) said he doesn't share Dick Cheney's views of executive power. "No, I think the constitution in times of war, especially, is very definitive about that," he said. "[I]t's divided power in the constitution. Our founding fathers divided that up. ... So no one branch of the government can misuse power."

According to new U.N. report on climate change, "the human population is now so large that the amount of resources needed to sustain it exceeds what is available at current consumption patterns." The speed at which mankind has used the Earth's resources over the past 20 years has put "humanity's very survival," the study concluded.

"House Democratic leaders" are "privately surveying their members" to determine "support for a criminal contempt resolution against White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers for shunning congressional subpoenas in the U.S. attorney investigation," which could happen "as ealy as next week."

International human rights groups have filed a lawsuit in France against former Defense Secretary Donald Rumsfeld for allowing torture at detention centers in Iraq and Guantanamo Bay. The groups say that Rumsfeld should be detained when he visits France on Friday for authorizing human rights abuses.

During a tour of the California disaster area yesterday, President Bush couldn't resist taking a shot at Louisiana Gov. Kathleen Blanco, blaming her for Katrina. "It makes a significant difference when you have somebody in the statehouse willing to take the lead," Bush said of California Gov. Arnold Schwarzenegger.

The House yesterday voted 265 to 142 to pass a revised SCHIP bill that sought to address concerns of conservative lawmakers. But two fewer Republicans voted for the new version. The vote tally "fell seven votes shy of the 272 needed for a veto-proof two-thirds majority."

And finally: Bush's Iraq policy is less popular than ghosts. "A poll released yesterday by the Associated Press made it official: Americans are more likely to believe in ghosts (34 percent) than to believe that President Bush is doing a good job with the war in Iraq (29 percent)."

By a vote of 265-142, the House passed the revised State Children's Health Insurance Program legislation yesterday, providing health care for 10 million children.

MARYLAND: New poll shows that a majority of Marylanders support "support allowing gay and lesbian couples to form civil unions."

OHIO: "The state will offer maternity benefits to far more pregnant workers than required by federal law."

DISTRICT OF COLUMBIA: "Nearly one in five residents of the District of Columbia lives in poverty, the highest percentage in nearly a decade."

THINK PROGRESS: Sen. Chuck Hagel (R-NE): New unilateral Iran sanctions "escalate the danger of a military confrontation."

DESMOG BLOG: Scientists publicly denounce latest White House climate change muzzling.

MEDIA MATTERS: Fox News' Bill O'Reilly admits that "tolerance" of homosexuality bothers him.

MY LEFT NUTMEG: Rep. Chris Shays (R-CT) claims he "can't think of anything this new Congress" has "done to help our soldiers win in Iraq."

"We will not be a safer country, we will not be a safer America if the whole world watches us being defeated by a bunch of kids with improvised explosive devices."
-- Former Sen. Fred Thompson (R-TN), 10/25/07, on the Iraqi insurgency

VERSUS

"Groups are well organized, produce regular publications, react rapidly to political developments and appear surprisingly centralized."
-- International Crisis Group, 2/16/06, in a report on the Iraqi insurgency

Think Progress

Jury Still Out On Judge Mukasey

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