Editore"s Note
Tilting at Windmills

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January 31, 2008

MUKASEY'S TOLERANCE FOR LAW-BREAKING....When Alberto Gonzales would periodically stop by the Senate Judiciary Committee for oversight hearings, it was extraordinarily painful. The bulk of the poor schmo's answers, when he wasn't feigning a faulty memory, were so breathtakingly dishonest, it was almost comical.

Michael Mukasey, in this sense, is a breath of fresh air. His callous disregard for the rule of law comes across as far more competent and direct. After yesterday's hearing, Dahlia Lithwick had a gem.

...Mukasey is only willing to make and defend his decisions without explaining them. Still, he is very convincing in asserting that even though his decision is secret and its rationale is secret, and all future applications are secret, he is nevertheless confident that it's the right decision. [...]

More and more frequently, we hear members of the Bush administration crying about the evils of "lawfare" -- the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You'd think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it's better to make them up in secret as you go along.

At one point, Mukasey argues that he "can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids." When Arlen Specter points to specific instances in which Bush has done just that -- including laws banning torture, FISA, and the National Security Act -- Mukasey takes a pass.

Apparently, for the nation's chief law-enforcement official, what's done is done.

Steve Benen 11:02 AM Permalink | Trackbacks | Comments (32)

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I thought I was following this, but I hadn't heard "lawfare" before. Question: should those who respect the rule of law disparage the term, or embrace it, as in, "Of course we are for lawfare. Lawfare won World War I, World War II, and the Cold War, and lawfare will make the United States the same respected world leader in the 21st Century that is was in the 20th. One of the few things the Bush Administration did right was bring us that term."

Posted by: Ken D. on January 31, 2008 at 11:08 AM | PERMALINK

L'etat, c'est moi.

Posted by: Stefan on January 31, 2008 at 11:14 AM | PERMALINK

like, wow, i'm, like, soooooo surprised to find out that one of Bush's appointees thinks the president is above the law. it's like, such a shockerrr that Bush would appoint someone who agrees with him!

maybe Leahy can write a sternly-worded memo... and then shove it somewhere the sun don't shine.

Posted by: cleek on January 31, 2008 at 11:17 AM | PERMALINK

Good point, Ken D. The comparison gets even stronger when you consider the fact that we won WWI and WWII through sheer force but have to win the so-called GWOT through hearts and minds.

Getting back to Kevin's post, the Democrats are sleeping in the bed they made. When somebody lies to you during a confirmation hearing, and you confirm him, then you should expect more lies once he is in office.

Posted by: reino on January 31, 2008 at 11:20 AM | PERMALINK

Edwards for Attorney General!

Posted by: slanted tom on January 31, 2008 at 11:21 AM | PERMALINK

Apparently, for the nation's chief law-breaking official, what's done is done.

Fixed it for you.

Posted by: Stefan on January 31, 2008 at 11:24 AM | PERMALINK


Posted by: mhr on January 31, 2008 at 11:26 AM | PERMALINK

From Lithwick's article:

But Mukasey won't speculate about future water-boarding, either, claiming he will not be drawn into "imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities." He also refuses to tell "people in the field ... what they have to refrain from or not refrain from in a situation that is not performing." Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey's eyes at the witness table in the Hart Senate Building, America's lawyer cannot hazard an opinion as to its legality.

So I suppose Mukasey's testimony can be boiled down to the Sgt. Schultz defense: "I see nothing, nothing!"

Posted by: Stefan on January 31, 2008 at 11:27 AM | PERMALINK

and mhr joins the list of pie fans!

Posted by: cleek on January 31, 2008 at 11:37 AM | PERMALINK

mhr, that makes no sense whatsoever.

Posted by: dontcallmefrancis on January 31, 2008 at 11:38 AM | PERMALINK

I thought that douche bag mhr was banned from this forum.

Posted by: Gandalf on January 31, 2008 at 11:42 AM | PERMALINK

When Arlen Specter nails you, it proves one thing: you're pretty lame.

Posted by: Cap'n Phealy on January 31, 2008 at 11:45 AM | PERMALINK

Not to worry: Once there is a Democratic president, congress will suddenly rediscover real oversight

Posted by: Mike on January 31, 2008 at 11:49 AM | PERMALINK


I think the position you refer to is above Mukasey's pay grade.

Posted by: cmdicely on January 31, 2008 at 11:59 AM | PERMALINK

What can I say? When you have a political system in which 1/3 of the Senate can block the President's removal from office, and over 1/3 of the Senate always belongs to the President's party, you're gonna have a President with dictatorial powers. You wanna change it? Nothing short of radically changing the Constitution -- and admitting that the Founders made a horrendous howler when they fondly assumed that political parties would never come into existence at all -- will do it.

But I'm not holding my breath for that desperately needed change, at least until after the final disaster -- and the final disaster may well take the form of a Franco-type military-backed tyranny running this country for several decades. Or longer.

Posted by: Bruce Moomaw on January 31, 2008 at 11:59 AM | PERMALINK

I too am in the "not surprised at all" camp. Dems are complicit in this mess.

Posted by: Govt Skeptic on January 31, 2008 at 12:08 PM | PERMALINK

The real issue is not whether or not the Bushies are violating the Constitution and the law, they clearly are, but that the groundwork has been laid for this uber-powerful Executive Branch to continue even mre dangerously in the future. Does anyone really believe that either McCain or Clinton won't take the same powers and probably try to expand them? Obama might but even that is unlikely. I realize there has been executive overreach in the past, but given how huge the Federal government is at this point, it is far less likely we can walk away from the dark side this time.

Posted by: Jim on January 31, 2008 at 12:14 PM | PERMALINK

I'm sorry detective, but my actions regarding that bank are secret, as at the decisions I made while interacting with the bank, but I can reassure that those actions where absolutely correct. Revealing mu decision or actions to you would telegraph our methods to terrorists who also wish to interact with banks. Inaddition, revealing any information to you would prevent me from taking further bold action at another bank. Its all very clear.

Posted by: The fake fake al on January 31, 2008 at 12:24 PM | PERMALINK

Again, can't thank Feinstein and Schumer enough for voting for this guy. Just fantastic.

Posted by: jonas on January 31, 2008 at 12:24 PM | PERMALINK

Michael Mukasey is a cult.

Posted by: Hostile on January 31, 2008 at 12:27 PM | PERMALINK

As long as he doesn't support illegal aliens he is head and shoulders over most of the corrupt politicians and liberals in the mainstream media.

Nowadays we only respect laws we like. Political correctness ranks higher with the liberals than rule of law and civilization.

Posted by: Luther on January 31, 2008 at 12:32 PM | PERMALINK

Luther, your post had a fairly high ratio of talking points to words, but you failed to choose talking points that were relevant to the topic at hand. so, nice effort, but completely off-target. it's like bowling a strike, but in the lane of the guy next to you.

so, i'm afraid we're gonna have to give you an F on this.

Posted by: cleek on January 31, 2008 at 12:55 PM | PERMALINK

Since the Executive no longer respects the role of the Legislature or of the Courts, that gives rise as to why anyone - including federal employees - should respect the Executive.

It seems to me the next logical step would be for - say - the Park Service to issue a "signing statement" asserting that it will enforce certain rules whether Bush likes it or not. And then to do so regardless of whatever squeals might emanate from the White House.

After all, if Bush can issue signing statements, then so can you and I.

Posted by: Duncan Kinder on January 31, 2008 at 1:02 PM | PERMALINK

Many thanks to Chuck Shumer and Diane Feinstein for their outstanding jobs during the Mukasey confirmation!

Posted by: Marc Duhamel on January 31, 2008 at 1:15 PM | PERMALINK

Had Gonzales been a "normal" Hispanic, ie a Democrat, no liberals would be bashing him today.

I was at Target yesterday and overheard a conversation by a group of Latinos who expressed their deep embarrassment that Gonzales was out there making all of them look bad with his stupidity. So, no, it's not all of the white liberals who hated the guy.

(It sounds very convenient, but I swear it's true. They also raked our mayor Villaraigosa over the coals for not being able to keep it in his pants.)

Posted by: Mnemosyne on January 31, 2008 at 1:18 PM | PERMALINK

We bash mhr even though he stays in the idiot plantation.

Posted by: reino on January 31, 2008 at 1:38 PM | PERMALINK

"Apparently, for the nation's chief law-enforcement official, what's done is done."

I represent defendants in criminal cases who will be glad to hear that if they are not caught in the act of committing some crime...."What's done is done" and there is no recourse against them.


Posted by: goalkeeper on January 31, 2008 at 1:47 PM | PERMALINK

I'm glad people here remember Schumer and Feinstein's role in getting this scumbag confirmed.

Posted by: uri on January 31, 2008 at 1:56 PM | PERMALINK

We won't forget the helpful democrats who guided Mukasey into his position.

Posted by: dag on January 31, 2008 at 2:20 PM | PERMALINK

"...it's better to make them up secret as you go along."
Do the writers of "Animal House" get their names listed in the credits of this administration?

Posted by: Doug on January 31, 2008 at 6:28 PM | PERMALINK

"Apparently, for the nation's chief law-enforcement official, what's done is done."

And what will be done will be done.

Posted by: Ross Best on January 31, 2008 at 7:31 PM | PERMALINK

Mukasey is just another Republican weasel.

It was reported yesterday that Mukasey, prior to accepting BushCo's offer to replace Gonzales as Attorney General, was trying to land some of those lucrative "corporate settlement" Justice Department no-bid contracts that have generated so many millions of dollars in attorney fees for those crony Republican lawyers who have been or remain "loyal" to BushCo.

So, my question for Muckasey is simple: what promises did BushCo make to you upon your acceptance to take Gonzales' place, and knowing that you would be passing up or delaying for a year or so raking in millions of dollars of attorney fees? Were you promised that high-flying Republicans would "make good," and not only cover your "lost" income while Attorney General, but would make sure you received double or triple what you had hoped to make through these highly lucrative no-bid Justice Department contracts? Mr. Muckasey, did you promise BushCo criminals that you'd do everything possible to "obstruct" any investigations into criminal activities by high-lying Republicans, like Bush and Cheney, in BushCo Inc.?

In other words, was Muckasey bought and paid for by BushCo promises prior to his accepting the position of Attorney General, and only after he signed a "blood oath" with BushCo did his nomination go forward?

Muckasey is no different than Gonzales, or any of the other culture of corruption Republicans currently befouling our Justice Department. Just another Republican Fascist Weasel.

Posted by: The Oracle on January 31, 2008 at 10:38 PM | PERMALINK



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