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Mukasey previews the Bush Defense

Michael Mukasey, nominated to head the Justice Department in the wake of Alberto Gonzales' long overdue departure, has show what I consider to be troubling equivocation in his testimony before the Senate Judiciary Committee. According to The New York Times, when asked if waterboarding was constitutional, his inital response was to state that he did not know what waterboarding was and therefore could not answer. When Senator Whitehouse (D-RI) offered a description of waterboarding and asked if that was constitutional, Mukasey's only answer was 'if it amounts to torture, it's not constitutional.'

In other words, he intends to strictly apply decisions handed to him in the full letter of the law - but explicitly waved off any responsibility (or ability) to make the decision as to what constituted torture. The problem is that if the Justice Department isn't going to make that decision, then (as we've seen and has been stated) the decision as to what is torture will simply be made by other agencies. If the Justice Department says "Torture is unconstitutional and we won't permit torture" but also says "We won't define what torture is" then all it is is a procedural rubber stamp. The real power to define our nation's behavior as constitutional or not, and hence to shape its actions, has been explicitly passed off to whoever is writing the definition of torture - a purely semantic exercise.

As we've seen, that person will be a Bush Administration functionary, likely writing in secret.

We've just been told by the nominee to head our Justice Department that he will be explicitly offering loopholes and definitional power to those not in the Justice Department - thereby ensuring its complete impotence in the struggle to police our nation and its actions.

Why would we approve this? Why? To all those in the Congress involved in this appointment: you must answer that question before voting. You must answer it to *our* satisfaction.

Posted by jbz at October 18, 2007 3:23 PM | TrackBack