Mukasey's answer on waterboarding is finally in to the Judiciary Committee, and he attempts to punt, refusing to say that the practice is torture, and while it is personally "repugnant to him," the question as posed to him was "hypothetical":
Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical.
This should be enough to scuttle this nomination. None other than Senators Leahy and Graham have said that his answer to this question would determine whether they would support him. Leahy's responded to Mukasey's hedge:
Based on an initial review of his response to the letter, I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States.
I would hope that Senator Leahy's concern can be transmuted to full opposition, not only because of the waterboarding question but because of the troubling responses he gave to the committee on theories of a unitary executive, as Kagro outlined yesterday.
As a reminder, Yale law professor Jed Rubenfeld wrote about this aspect of Mukasey's testimony in a New York Time's op-ed. When asked the simple question of whether the President is required to obey federal statutes, Mukasey answered:
"That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country."
But before voting to confirm him as the nation’s chief law enforcement officer, the Senate should demand that he retract this statement. It is a dangerous confusion and distortion of the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.... What he said, and what many members of the current administration have claimed, would radically transform this accepted point of law into a completely different and un-American concept of executive power.
According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority "to defend the nation" trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way "to defend the nation."
If he is not, we no longer live under the government the founders established.
This, to quote Sen. Dodd from yesterday's conference call, "is about as fundamental as it gets." It indicates that Mukasey would carry on the Gonzales' tradition of a unitary executive functioning outside of the bounds of the Constitution. That Mukasey, a federal judge, could hold this opinion is deeply troubling. Senators Dodd, Clinton, and Obama have vowed to oppose his nomination if it gets out of committee (as does Edwards, but he unfortunately doesn't get to vote on this one).
Mukasey's non-answer on torture and his troubling statements on an executive above the law should be enough to scuttle this nomination in committee. The knowledge that the major presidential contenders in the Senate--our de facto leaders--are opposing him just adds more weight.
Call Senators Leahy (202-224-4242) and Specter (202-224-4254) and other members of the Judiciary Committee and tell them that we don't need another torture apologist or lackey for a president who thinks he's above the law as the nation's Attorney General. We've already had that, and look where it got us.
Update: All the Senators running for president have weighed in. Biden has announced his opposition, and as a member of the Judiciary Committee, arguably has some sway. Keep those calls going to the Judiciary Committee. Maybe we can inject enough spine in them to reject both Mukasey and telecom amnesty.