Michael Mukasey is certainly qualified to be Attorney General of the United States, if Alberto Gonzales sets any precedent.
And while that may be the least convincing recommendation anyone can ever be given for the job, consider that Mukasey yesterday gave perhaps the least convincing answer to one of the most important questions asked of him -- by Sen. Sheldon Whitehouse (D-RI)-- in his confirmation hearing:
WHITEHOUSE: Is waterboarding constitutional?
MUKASEY: I don’t know what is involved in the technique. If waterboarding is torture, torture is not constitutional.
WHITEHOUSE: "If waterboarding is constitutional" is a massive hedge.
MUKASEY: No, I said, "If it's torture." I'm sorry. I said, "If it's torture."
WHITEHOUSE: "If it's torture." That's a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning. Is that constitutional?
MUKASEY: If it amounts to torture, it is not constitutional.
WHITEHOUSE: I'm very disappointed in that answer — I think it is purely semantic.
MUKASEY: I’m sorry.
And Whitehouse is right, of course. To say torture is not constitutional is -- or should be, in a sane world -- to say nothing at all. That is the response one might expect from a junior high school civics student, not a nominee for Attorney General.
But Mukasey, and his putative boss, George W. Bush, have a much bigger problem than being able to get away with massive hedges. The problem is that Bush's policies have made it impossible for any nominee for Attorney General who hopes to retain any amount of faith with this "administration" to answer these threshold questions with any amount of honesty.
It is simply bedrock truth that no one can answer the torture questions honestly without exposing the fact that the "administration" hinges its entire detainee policy on semantics.
It is similarly unfathomable -- or once was unfathomable in America -- that a nominee for Attorney General of the United States would ever have to say anything other than "no" to the question of "Is waterboarding constitutional?"
George W. Bush's detainee policies have, quite simply, rendered honest and conscientious service as an Attorney General impossible. One simply cannot serve both this president and the law faithfully. It is a paradox and an impossibility, because this president does not serve the law faithfully. And what it means, at bottom, is that George W. Bush's "administration" is an enemy of the rule of law, and has so diminished our capacity to live by it that no honest Senator should permit him the charade of attending to it with the window dressing of confirming an Attorney General.
Anyone who would hold that job in this "administration" will by definition be reduced to serving as a placeholder only -- a mere figurehead to whom everyone will, out of pure habit only, refer to as the "Attorney General," but who will at the end of the day be prevented from administering the law he will have sworn to uphold.