The Good And (Mostly) Bad From Mukasey

I think that the Attorney General nominee is making some strong statements, although it's hard to know what these confirmation hearings really mean anymore. But certainly, a US government official calling torture antithetical to the American way is a good start.

Mukasey repudiated a 2002 memo by then-Assistant Attorney General Jay Bybee that said the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture. The memo was later disavowed and overridden by an executive order on interrogation of terrorism suspects, which allowed harsh questioning but included a vaguely worded ban on cruel and inhuman treatment.

"The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary," Mukasey, 66, told the Senate Judiciary Committee under questioning by Chairman Patrick Leahy, D-Vt.

Leahy said that he and other senators did not vote for Gonzales in large part because he refused to disavow the Bybee memo.

There were other statements about partisan politicization of the office and independence from the President, which all sound good on paper. But what brought me short is Mukasey's equivocation on such key issues as indefinite detention and warrantless wiretapping. He keeps talking about a "space" between FISA's statutory authority and the President's authority to protect the nation, without ever elaborating on what that space actually is (it's the space where illegal actions can be justified, I guess). And on indefinite detentions, he claims that he "can't say now" if the United States is a "battlefield" and therefore somewhere that the President has ability to detain citizens without due process or habeas protections.

So the sunshine talk is really nice, but on the key issues this is the President's choice, and he's going to side with the President. Obviously. And he's going to be as vague as possible so as not to get caught by specifics later. Nice talk on torture, but on specifics, he hasn't "looked into" actual measures like head-slapping and waterboarding to say whether or not they constitute torture. Somehow Mukasey is seen as the Very Serious Independent figure that will restore balance to the Justice Department, but he has also refused to disavow many of the illegal policies of the Bush Administration, and can predictably be seen as to fall in line with them. Glenn Greenwald has much more.

Mukasey will clearly support the Ashcroft/Comey/Goldsmith view that the President possesses Article II power to eavesdrop for foreign intelligence purposes, even on U.S. soil, and that FISA cannot restrict that power.

Hooray for independence!