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Mukasey Tongue-Tied on Administration Law Breaking
Michael Mukasey is not a man to live in the past. It's a much more difficult place.
Sen. Arlen Specter (R-PA) started his questions by asking about the President's Article II powers under the Constitution. Do you think that the President can break any law he pleases because he's the President -- including, say, statutes banning torture?
"I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids," Mukasey shot back.
"Well, he did just that when he violated the Foreign Intelligence Surveillance Act" Specter responded. "Didn't he?"
Well, "both of those issues have been brought within statutes," Mukasey responded, apparently hoping that he wouldn't have to discuss the stickier past.
"That's not the point," Specter pressed. "The point is that he acted in violation of statutes, didn't he?"
"I don't know," Mukasey conceded. Awkward.
"There's no dispute about that," isn't there? The law says you have to go to court to get a warrant for wiretapping and the administration didn't do that.
Mukasey then wound into a description of the alleged problems with FISA regarding foreign to foreign communications.
"But I'm talking about wiretapping U.S. citizens in the United States" Specter protested, before giving up, saying "Well, not getting very far there, let me move on...."
Update: Here's the transcript:
SPECTER: Attorney General Mukasey, we have seen the expansion of assertions of presidential authority under Article II, illustrated, as I said earlier, by his violating the Foreign Intelligence Surveillance Act, saying that he had Article II powers as commander in chief.We have seen the president disregard the National Security Act of 1947, which mandates telling the Intelligence Committees in both houses when he undertakes a program like the terrorist surveillance program.
And the question comes down to whether the president may assert Article II power to violate the U.S. statute prohibiting torture and to act in variance with the Geneva Convention to protect America.
I'm going to read you a judgment by former Deputy Attorney General Philip Heymann, now a Harvard professor. And in a book he wrote to this effect, quote: "For the extremely rare case of an immediate threat to U.S. lives, unavoidable in any other way, we would allow the president to personally authorize an exception to the U.S. obligation under the Convention Against Torture and the U.S. Constitution not to engage in cruel, inhuman or degrading treatment short of torture, so long as the decision by the president is based on written findings documenting his reasons and is promptly submitted to the appropriate congressional committees," close quote.
My question to you is that under the standard which former Deputy Attorney General Heymann articulates, is there a legitimate argument that the president has Article II powers to undertake such conduct?
MUKASEY: There are a number of concepts in your question, including whether he has authority to undertake torture.
Torture, as you know, is now unlawful under American law. I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids.
SPECTER: Well, he did just that in violating the Foreign Intelligence Surveillance Act. He did just that in disregarding the express mandate of the National Security Act to notify the Intelligence Committees. Didn't he?
MUKASEY: I think we are now in a situation where both of those issues have been brought within statutes, and that's the procedure going forward.
SPECTER: That's not the point. The point is that he acted in violation of statutes, didn't he?
MUKASEY: I don't know whether he acted in violation of statutes.
SPECTER: Well, didn't he act in violation of the Foreign Intelligence Surveillance Act? Expressly mandates you have to go to a court to get an order for wiretapping. There's really no dispute about that, is there?
MUKASEY: It required an order with regard to wire communications when that was a surrogate for foreign communication, for domestic communications, when foreign communications became something that traveled by wire.
SPECTER: I'm not talking about foreign communications. I'm talking about wiretapping U.S. citizens in the United States. Terrorist surveillance program undertook to do that.
SPECTER: Well, not getting very far there. Let me move on to the...
Comments (17)
PJ wrote on January 30, 2008 11:42 AM:Man, just once when an officer pulls me over for going 42 in a 35 mph zone and he asks me if I was speeding and I reply, "I don't know", he'll say, "Well, not getting very far there, let me move on....", and let me go. Justice is wonderful!!!
Pray for our Nation!
Peace!
chisholm wrote on January 30, 2008 11:50 AM:Does anyone else get flashes of integrity from Mukasey? I sense moments of internal conflict within him. He's there to protect the president and he will do so very effectively, but sometimes I wonder if it won't come at a high cost to his conscience. Maybe not now, or the near future, but over time.
Louis wrote on January 30, 2008 11:59 AM:Arlen, there you go again. Just when it appears you're about to stand on principle, you back down. Yes, why don't you move on?
Centerpunch wrote on January 30, 2008 12:21 PM:Sheldon Whitehouse will follow-up on that question--right?
Time to impeach shitball.
? Now that we know (officially) that the Chimp in Chief has broken the law, is it incumbent upon Congress to file for some sort of reprimand?
Aren't these guys sworn to uphold the law?
Alguien wrote on January 30, 2008 12:26 PM:Is it just me or is anybody else having an Alberto deja-vu experience?
brian wrote on January 30, 2008 12:35 PM:The administration started eavesdropping on domestic phone calls before they had 'terrorism' as an excuse to do so.
Wire taps are ALWAYS used to snoop on political opponents.
Specter was following a very good line of questioning - why did he drop it ?
JMOHR wrote on January 30, 2008 12:40 PM:Yes, he has some integrity. He may also have some pride and does not want to look like the total fool as have other Bush appointees.
The president should not violate the law. He certainly has no authority under the constitution to do so. That said, there may be times when circumstances require setting aside the law. The Republicans always point to Lincoln and his setting aside of habeas corpus. This is where the distinctions are lost:
1. Lincoln was facing a real civil war with great portions of the nation aflame and tens of thousands casualty in the war. In many areas, the courts were not open. Bush speaks to a possible threat that may occur. The keystone prosecutions of some of these terrorists belies the difference.
2. Lincoln faced his war when communications and coordination were significantly slower due to technology. When Congress went into recess, it really went into recess. Lincoln had to make decisions on occasion in which full consultation with congress would have been impossible. Bush has no such excuse in this modern age.
3. Lincoln never attempted to hide what he was doing. Indeed, he was forthright and asked the congress to ratify or set aside what he was doing. Bush imposes secrecy so that we still do not know what he is doing.
4. Lincoln took his actions with reluctance and after consultation with his cabinet. His advisers included those who(if not actually working against him) disagreed with his opinion. Bush - well Bubble boy and acting under the will of God.
A long time ago, I learned never to say never. The same goes here. We can all think of an extreme situation in which illegal spying, wiretapping or even torture may be justified. The law even embodies a defense to criminal liability called defense of another. However, it is the fact that one must be judged afterwards as to the justification, in the full light of the day and by the Congress and public that will make such actions rare and measured.
djcrow22 wrote on January 30, 2008 1:05 PM:ummm,ummm,ummm...seven years of spectacular,purposeful incompetence has so lowered the bar of expectation of the American public that this performance by the highest ranking law enforcement officer has become the norm.ummm,ummm,ummm...Who could have imagined that this ass____ would pick right up where Gonzales left off. We have truly become a nation led by despots and tyrants. If we "allow" Clinton to become president, there will be no change and with it no hope. I try to stay positive but people like Mukasey really bum me out.
NCBlueneck wrote on January 30, 2008 1:11 PM:Dropping the ball just when you were getting close to the "score" is Specter's MO. This is just kibuki theater -- the appearance of oversight -- no actual oversite. This is simply pathetic. I am pleading with the voters of PA to show this fool the door. It's time for him to "spend more time with his family".
SVH wrote on January 30, 2008 1:12 PM:Mukasey knows that he probably will be out of a job by November, one way or another.
More to the point his job was made clear to him when he took the AG position- hold the line until Bush issues his end of term pardons; after that it doesn't matter.
Mukasey's testimony today makes it clear he is an accomplice; no less, no more.
Frankly anyone who claims the US is still a nation governed by laws really invites a certain amount of derisive laughter.
josh-quasimoto wrote on January 30, 2008 1:30 PM:This may be from left field but I rememeber when Reagan and all his cronies were brought up for investigation and he all the sudden started sayong "I can not recollect that!" over and over leaving little Ollien North (the good republican that he is) hanging to dry. I also remember Bill Clinton, saying that he did not have sexual relations with that woman, and what "is" is! They are not the same, I mean Bill getting a BJ in the oval office is nothing compared to funding internal strife within other nations and financing at least partially with cocaine sales while at the same time expanding Nixon's drug war programs. But the beautiful thing about Reagan's efforts are that it made alot of money for people in the defense industry and gave many former military men and women contracting jobs. Now we have poeple edifying Reagan's memory without looking at the damage he did to many in America, foreign countries, not to mention our Constitution. I don't know if it is just me but it seems that a certain powerful minority in America has a deep hatred for anything that doesn't look and smell the way they want America to be!
parrot wrote on January 30, 2008 2:02 PM:Thanks to the primaries and the kissing up by the candidates, we aren't hearing too much about how the law seems to have ceased to exist under this so-called Presidency of the criminal George W. Bush. Seriously, there needs to be a legal accounting of all the crimes committed by the U.S. regime under his tenure at the White House. When will the Congress act instead of just sit up there asking questions to the perfidious underlings of "The Decider"? It appears that he "decided" to break the laws and ignore the Bill of Rights and only accept parts of the Constitution that gave him more power without any checks on that power. He is the harbinger of tyranny and his aids still remain in power and soil or government buildings with their thuggery, torture, lying, graft, and stupidity.
SeeDee wrote on January 30, 2008 2:13 PM:To chisholm RE Mukasey's 'integrity: "Maybe not now, nor in the near future.."
WTF, if NOT NOW nor in the NEAR FUTURE, what the hell good is his integrity?
He is the personification of the bamboozlement on every issue, both domestic and foreign, that characterizes the present administration.....aided and abetted by a group of feckless DINO's.
You, chisholm, must be super-perceptive to find 'flashes of integrity' in a witness who, under oath, equivocates and mumbles in response to a peoples' legislator's questioning.
Mark F wrote on January 30, 2008 2:24 PM:They confirmed him, he sucks, they'll do nothing.
Roberta wrote on January 30, 2008 2:47 PM:For awhile I've been thinking that there are some non-elected offices that should be utterly nonpartisan, and by that I mean that the people in them shouldn't even have a declared party affiliation. (And not in that bullshit way of going in with a party affiliation and then becoming "independent").
No, I don't know what the practical steps would be for putting people in those offices.
But never before have I thought much about what party people in the DoJ, especially, belonged to. Bush and Cheney changed all that. Ditto with the Supreme Court.
I was fascinated to learn that Jim Lehrer is not registered in a political party, and he has never stated what his party or candidate preferences are. He has done this so he can remain as absolutely neutral and objective as possible as a journalist.
Now, if a journalist can hold himself to this standard, can't we expect it of those who are supposed to serve the Constitution (and thereby the American people) by interpreting and enforcing its laws?
Dennis wrote on January 30, 2008 6:02 PM:Specter had Mukasey on the ropes and let him go. Why? Specter is smarter than that.
And whether Mukasey despite his rhetoric that he is an individual as he heads the DOJ and not the lawyer for the president, did everything he could to protect Bush and Cheney. He tried to skim over the question of the law breaking of the illegal spying on Americans by shifting to the laws he is presently enforcing.
Anonymous wrote on January 31, 2008 1:21 AM:You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
Notice the use of "would," implying _future_ cases. But the law is about looking at past conduct. Specifically, this is a problematic statement, that suggests one thing, but could be taken as something else: "I can't contemplate any situation in which this president _would_ assert Article II authority to do something that the law forbids,"
The AG could later say, "When I said, 'would', I was only referring to _future_ events; and did not refer to any _historical_ events. Let's ask it another way, to eliminate any doubt:
- How many laws _did_ this President Assert Article II powers to violate?
- How many situations _did_ this President Assert Article II authority to do something the law forbids: FISA violations, Geneva-prisoner abuse, Geneva-violations in re unlawful warfare without an imminent threat.
Congress and AG have "the answer": "We don't do investigations." That's not an answer. That's alleged malfeasance in re war crimes. Yet, failure to enforce Geneva was, at Nuremberg, the legal basis to prosecute civilians and legal professionals. The same could be done against Members of Congress and this AG.
Time to remind Congress and the AG: If you fail to enforce Geneva, Nuremberg is precedent for prosecuting you for a subsequent war crime. The Grand Juries can easily do this, outside Congress, outside elections, and outside the electoral process.