October 28, 2007

The Curious Issue Between Congress And Mukasey

Judge Michael Mukasey's smooth ride to confirmation as Attorney General has hit some turbulent water -- over the issue of waterboarding. Despite having Chuck Schumer's endorsement, the confirmation hearings have bogged down to the point where the White House wonders when they will end:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Saturday rejected White House criticism that his panel was moving along too slowly the nomination of Michael Mukasey, whom President Bush tapped as the next attorney general.

“The Senate is evaluating this nomination fairly, thoroughly and responsibly in keeping with the way other major nominations are handled,” Leahy stated. “Judge Mukasey’s written responses to questions from Republicans and Democrats, responses which the Committee has not yet received, are critical in the consideration of his nomination.”

The only issue that has tripped Mukasey, however, is whether he considers waterboarding torture. John McCain certainly does, but others disagree; the technique helped break Khalid Sheikh Muhammed, and American commandos undergo waterboarding to prepare them for more serious torture in case of capture. Mukasey has refused to specifically call waterboarding a form of torture, and therefore illegal, despite the insistence of the Senate Judiciary Committee that he do so for confirmation.

And here is the core of the silliness in this standoff. Here we have Congress, as represented by the Judiciary Committee, demanding that an AG candidate declare a specific act illegal. They have it completely backwards. Congress has the responsibility to pass laws and make the determination of legality and illegality -- and the AG has the responsibility to enforce those laws.

If Patrick Leahy wants to make waterboarding illegal outside of any doubt or interpretation, he only needs to propose a law specifically and explicitly outlawing the practice. He probably could get enough votes for such a measure to pass cloture in the Senate, especially with McCain arguing against the practice. Once the law passed, assuming it could get past a Presidential veto, the AG would have no choice but to enforce the law as written. That means interrogators could not use it on detainees, and the DoD could not use it for commando training. The DoJ would have to prosecute all uses of the practice.

Instead, and only because Congress refuses to go explicitly on record, we have the ludicrous spectacle of a Senate panel demanding that the AG create laws instead of enforcing them. The entire exercise serves as an admission that Congress has abdicated its role in legislation and now wants not just the judiciary but the executive branch to take that responsibility from them. Just the fact that this dance exists shows that Congress didn't address the problem properly in their anti-torture legislation, for reasons involving political cowardice.

Michael Mukasey needs to answer whether he will enthusiastically enforce the laws that Congress creates and the President signs, not how he'll make up legal standards as he goes along. For a Congress so enraged over a supposedly imperial executive, their current approach does nothing but encourage more of the same.


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