[NYTr] Mukasey and the Constitution: Another Loyal Bushie

[All the News That Doesn't Fit]

Counterpunch - Oct 22, 2007
http://www.counterpunch.org/cohn10222007.html


Another Loyal Bushie

Michael Mukasey and the Constitution

By MARJORIE COHN

The Michael Mukasey Senate Judiciary Committee confirmation hearing has
demonstrated that Mukasey cannot be relied upon to function
independently as U.S. Attorney General. Nevertheless, Senators on the
Senate Judiciary Committee seem so thrilled that Mukasey is not Alberto
Gonzales that they're willing to vote for him even though he's another
loyal Bushie. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary
Committee, backed down on his promise to hold up the confirmation
hearing until the administration turned over material his committee had
requested regarding several investigations. Leahy said of Mukasey after
the hearing, "He's at least answered the questions, which is better
than his predecessor. He's going to be different than Gonzales on all
the issues, I think. He will certainly be better than Gonzales on
morale."

But saying that Mukasey compares favorably to Alberto Gonzales is faint
praise for the nominee. The former Attorney General resigned during a
firestorm of criticism about his U.S. Attorney purges, and his repeated
claims of memory loss when he testified before the Senate Judiciary
Committee.

Mukasey doesn't seem to have a memory problem; he relied on a different
excuse for dodging the Senators' hard questions: he hasn't been "read
in on" the details of Bush policies, such as interrogation techniques,
or the "Terrorist Surveillance Program." Mukasey claims he doesn't know
what water boarding is, so he can't say if it constitutes torture. Say
what? Mukasey's claimed ignorance of water boarding is about as
credible as his predecessor's convenient claims of amnesia. Rear Adm.
John Hutson (USN Ret.) testified at the confirmation hearing, "Other
than, perhaps the rack and thumbscrews, water boarding is the most
iconic example of torture in history. It was devised, I believe, in the
Spanish inquisition. It has been repudiated for centuries."

Mukasey made the incredible assertions that "we do not torture" and "I
don't think people are mistreated" at Guantánamo. The main problem he
sees with Guantánamo is that "nobody owns it," that is, there is
jurisdictional overlap between the Justice and Defense Departments.
Mukasey callously told Sen. Dick Durbin before the hearings that
Guantánamo was used as a "fright wig," and after all, detainees receive
"three hots and a cot, health care better than many Americans, and
taxpayer-funded Korans."

The rest of us haven't been "read in on" the classified details either.
But we know that torture and inhuman treatment is Bush policy in spite
of the fact it's illegal. The 2005 Department of Justice memos recently
leaked to the New York Times say the government is engaging in water
boarding, head slapping and exposing people to frigid temperatures, the
International Committee of the Red Cross said the treatment of
prisoners in U.S. custody is tantamount to torture, and the U.N. Human
Rights Commission concluded that force feeding Guantánamo prisoners
amounts to torture. We also know that Bush spied on Americans without
warrants in spite of the Foreign Intelligence Surveillance Act (FISA)
because he and Gonzales admitted it. And we know what water boarding is.

Some of Mukasey's testimony before the Senate Judiciary Committee
should have raised red flags in the minds of Democratic Senators.
Mukasey refused to reject the notion that the President can
constitutionally violate FISA. He misread the Supreme Court's recent
decision in Hamdan v. Rumsfeld, which clearly rejected Bush's claim
that Common Article 3 of the Geneva Conventions doesn't protect
al-Qaeda prisoners. Common Article 3 prohibits torture and cruel or
inhuman treatment of all prisoners. In fact, the Hamdan Court referred
to possible liability under the U.S. War Crimes Act for those who
violate Common Article 3. And when asked about contempt charges against
witnesses who refuse to respond to congressional subpoenas, Mukasey
said he would refuse to follow the statute that requires a U.S.
attorney to refer contempt citations to a grand jury.

Nonetheless, Mukasey appears to be a shoo-in, with the Senate
proceedings resembling a charade. One month before Mukasey was tapped
by Bush for AG, the former federal judge penned an op-ed in the Wall
Street Journal complaining about too much due process in terrorism
prosecutions and advocating special courts where the Constitution
wouldn't get in the way of catching the bad guys.

Mukasey's excessive zeal for Bush's war on terror was evident right
after 9/11. In an October 2, 2001 hearing in his court, then-Judge
Mukasey dismissed attorney Randall Hamud's claim that his client,
21-year-old Jordanian Osama Awadallah, had been physically beaten while
in custody and had the marks to prove it. Mukasey retorted, "As far as
the claim he was beaten, I will tell you he looks fine to me." The
judge then refused to direct that Awadallah be examined by a doctor,
and ordered that he be held indefinitely. The marks were under
Awadallah's clothing. He was one of the more than 1,000 men of Arab
descent rounded up after 9/11, and later exonerated. Many suffered
similar abuse while in U.S. custody. Ronald Kuby was a defense attorney
in the 1995 Omar Abdel Rahman case, over which Mukasey presided.
Mukasey "was violating the rights of Arabs before it was popular," Kuby
said. "It was very much like trying a case with two prosecutors, one of
whom was wearing a black robe."

After librarians complained about the USA Patriot Act's provision that
required them to tell the government what books we read, Mukasey mocked
them in a Wall Street Journal op-ed. He described civil liberties
concerns as "recreational hysteria."

Although former Judge Mukasey ruled Jose Padilla had the right to
consult with counsel, he held that the President has the power to
detain U.S. citizens caught on U.S. soil without charging them with a
crime. When Sen. Dianne Feinstein questioned him, Mukasey incorrectly
cited Hamdi v. Rumsfeld to support his position. Hamdi, unlike Padilla,
was captured on the battlefield in Afghanistan, and the high court held
that even Hamdi was entitled to some basic due process. In response to
Feinstein's question about whether Congress has the right to set
boundaries on military action under Article I of the Constitution,
Mukasey demurred, arguing his "learning curve" was "steep."

Mukasey ducked the question of whether he would advise the President to
allow unlawful enemy combatants habeas corpus rights at Guantánamo Bay.
"I would not advise the President to grant rights beyond those that
they already have," he told Sen. Lindsey Graham. In spite of the
Military Commissions Act, which purports to deny these people statutory
habeas rights, the Supreme Court will likely decide this term that they
still have the constitutional right to habeas corpus.

At the committee hearing on Wednesday, Mukasey was introduced by his
dear friend and law school buddy Joe Lieberman. No one is fanning the
flames of war against Iran more than Lieberman. Bush/Cheney likely see
Mukasey as a reliable ally who will help "legitimize" their impending
illegal attack on Iran.

When Bush nominated Mukasey for attorney general, he declared Mukasey
would "ensure that our law enforcement and intelligence officers have
the tools they need to protect the United States and our citizens."
Mukasey, who refused to call water boarding torture, will likely
support that "tool" in the war on terror. Mukasey told senators in
advance of his hearing that he supports enhanced interrogation
techniques, according to Newsweek's Michael Isikoff.

Michael Mukasey cannot be counted on to independently investigate the
crimes of the White House. Elizabeth Holtzman, a former congresswoman
who served on the House Judiciary Committee during the Nixon
impeachment, advocated in a recent op-ed in the Progressive that the
Senate should confirm Muksey only if he pledges to appoint a special
prosecutor to investigate the Bush administration. That's what the
Democratically-controlled Congress did in 1973 after Nixon nominated
Elliot Richardson for attorney general. Richardson agreed, he was
confirmed, and then appointed Archibald Cox as special prosecutor.
Cox's investigations and summary dismissal resulted in the issuance of
articles of impeachment against Nixon in the House Judiciary Committee
followed by Nixon's resignation. It would be wonderful to have a
Congress that once again stood up to the President when he breaks the
law.

[Marjorie Cohn is a professor at Thomas Jefferson School of Law and
president of the National Lawyers Guild. She is the author of Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law ]