I'm roughly as angry as Kagro X is about the decisions of Sens. Feinstein and Schumer to support Judge Mukasey for Attorney General. I see two ways to proceed at a time like this: one, either declare defeat and slam the Democrats, or try to figure out a way to mitigate the damage. What I suggest here is not as good as blocking the nomination, but I think it's better than we'll otherwise get. I do understand why others would not think that half (or a third) a load is better than none.
Larry Johnson's diary asks that the relevant Senate Committees hold onto the nomination until Judge Mukasey accepts that he opposes waterboarding. As Glenn Greenwald notes, Mukasey's position on waterboarding is more a symptom of rather than the root of the problem, but I think it may give us some means for improving the situation.
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This diary is the author's opinion and is not affiliated with any candidate or campaign.
We need to begin by asking see why Democrats like Feinstein and Schumer might support Mukasey and what the actual costs of that support are. I think that we can blunt some of the costs we now look likely to pay.
First, I think it's likely that Feinstein and Schumer believe that they are voting for "good governance," in that they believe that it is not a good thing for the DOJ to be led by an interim appointment. Reasonable people can disagree on how important this is in context, but it's not a stupid position. While concerns about the so-called Unitary Executive are paramount for me and for Kagro, the Justice Department does much more than that, and Mukasey will probably be a decent AG in other respects. To me, this does not outweigh his deficiencies, but it is at least a consideration, especially given how bad the interim leadership of the DOJ will be. So while it is fair, if fanciful, to say that "David Addington is the real AG either way," this applies to a relatively narrow slice (though crticial) of the DOJ's responsibilities.
If David Addington is going to make policy re the Unitary Executive either way, though, then why does it matter who is the AG? The reason, I believe, is that Senate approval of Mukasey appears to give the Senate's imprimatur to torture and to untrammeled Presidential power. This is a serious concern, but also suggests a solution: figure out a way to ensure that approval of Mukasey does not grant such an imprimatur.
We can do this, in part, because Mukasey does not really have the courage of David Addington's convictions. Taken at his word, Mukasey isn't quite expressing the embarrassing position that waterboarding isn't torture, but is instead claiming not to have done his homework, not to know the lay of the land, and so on. This leaves open the prospect that if Congress really made things clear, he would respect the law.
So, let's force him to choose sides, and force Feinstein and Schumer to face the significance of their actions.
I'd like to see a Sense of Congress resolution -- yes, it can start in the House -- that says the following:
(1) Defining waterboarding and noting the grounds on which it is and has been illegal.
(2) Noting that this policy covers the entire government.
(3) Noting that it is the express responsibility of the Attorney General and all others within government to honor the above, and that criminal sanctions already exist for violating the law.
(4) Noting that the approval of a new Attorney General should be taken to express Congress's understanding that he agrees with the above, and that if he does not agree he should withdraw his name.
(5) Noting that the resolution is unnecessary because its conclusions should already be clear, but that because they have fallen into dispute Congress reiterates the law.
(Your improvements are welcome, by the way! I've limited this to waterboarding, but it could contain other areas where Congress and the public and the Constitution are aligned against the Bush Administration.)
Once the resolution has passed, the confirmation of Mukasey becomes just another step that sets the stage for an ultimate fight between him and Congress when he violates the understanding expressed therein. There's no imprimatur. But if this does not pass, then we have to have another talk with Feinstein and Schumer, because their argument for voting for him no longer holds water.
If there is a way to make this into legislation so that it would require Bush's signature, that would be even better, as it would then provide a basis for waiting for Bush to sign before approving Mukasey.
This is not how I would like to have seen this fight end up. But I think it is significantly better than where we are otherwise headed.