The sad decline of Michael Mukasey

His reputation for integrity was meant to restore credibility to the Justice Department. Instead, his remarks on waterboarding show that he, like Alberto Gonzales, has let the White House call the shots.

By Sidney Blumenthal

Read more: Politics, Sidney Blumenthal, Opinion, Attorney General, Torture, Dick Cheney, Alberto Gonzales, Michael Mukasey

Reuters/Jonathan Ernst

Michael Mukasey during a break in his confirmation hearing before the Senate Judiciary Committee Oct. 17, 2007.

Nov. 1, 2007 | When President Bush nominated Michael Mukasey as attorney general his distinguished career was offered as guarantee of his integrity and independence. A former federal district judge, senior partner at a major law firm and former assistant U.S. attorney, well known and widely respected by the New York bar, he appeared to have the experience and balance needed to restore trust to the battered Justice Department. The previous attorney general, Alberto Gonzales, had been an eager plaything of the White House, a factotum from Texas who faithfully followed orders to politicize and purge for partisan purposes. While Mukasey espouses conservative views upholding an expansive interpretation of the executive, and argues that warrantless domestic surveillance is therefore justified, Democratic senators on the Judiciary Committee were still willing to give him the benefit of the doubt.

Then Mukasey was questioned about whether waterboarding -- a technique of forced drowning first used in the Spanish Inquisition and by orders of the Bush administration applied to accused terrorist detainees -- is torture. At great length, the nominee feigned lack of knowledge: "I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that." Questioned further, he said, "If it amounts to torture, it is not constitutional." But he would not say whether it was torture.

All 10 Democratic senators on the committee sent Mukasey a letter asking him to clarify whether waterboarding is torture. On Oct. 30, the nominee replied in four convoluted pages. He called waterboarding "over the line" and "repugnant" on "a personal basis," but adopted the lawyerly pose that it was merely an academic issue: "Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."

Mukasey's retreat into abstraction, however, did not shield him from controversy. On the contrary, Democratic senators on the committee now declared that his nomination was in jeopardy. With his deliberately opaque replies, Mukasey had failed to protect himself, but instead in a stroke exposed himself to rejection. He did not suddenly find himself in trouble because he was an outsider to Washington. Nor had he committed a gaffe or a slip of the tongue, or displayed strange behavior. The nominee who was to be the break from Gonzales was acting remarkably like Gonzales.

Mukasey is not a free agent. He had been strictly briefed and in his testimony was following orders. He has avoided calling waterboarding torture because that is consistent with the administration's position and past practice. Mukasey's refusal to disavow waterboarding reveals his acceptance of his assignment to a secondary role as attorney general, an inferior agent, not a constitutional officer, to certain political appointees in the White House.

Those who are responsible for waterboarding have defined and dictated Mukasey's evasions. His acquiescence demonstrates that no one in his position could take a contrary view to that of David Addington, Vice President Cheney's former counsel and now chief of staff, who directed and coauthored the infamous memos by former deputy assistant director of the Office of Legal Counsel John Yoo justifying torture, and charged the current acting director of OLC, Stephen Bradbury, to issue new memos rationalizing it.

Addington is the reigning legal authority within the administration, presiding over the attorney general no matter who would fill the job. Addington rules by decree and tantrum, intolerant of any alternative opinion, which he suppresses with intimidation and threat. Gonzales, as White House counsel and then attorney general, was the marionette of Karl Rove and Addington. Rove is gone, but Addington remains.

In his confirmation hearings, Mukasey has proved he will dance as the strings are pulled. His positions on waterboarding express precisely the relationship between the Bush White House and its Justice Department. Mukasey's testimony telegraphs that the White House will continue to call the shots. He has already ceded the essence of his power even before assuming it. His vaunted integrity and independence have been crushed, short work for Addington.

Addington's dominion over the law -- controlling the writing of the president's executive orders and the memos from OLC, the office of the White House counsel and the carefully placed network of general counsels throughout the federal government's departments and agencies -- is a well-established and central aspect of Cheney's power. Addington has been indispensable to the vice president since he served as his counsel on the joint congressional committee investigating the Iran-Contra scandal, when Cheney was the ranking minority member. In that capacity, Addington wrote, under Cheney's signature, the notorious minority report that was an early clarion call for the imperial presidency.

Addington and Cheney's report decried Congress for its "hysteria" over the Iran-Contra scandal, which involved the selling of missiles to Iran to finance arms for the Nicaraguan Contras against explicit congressional legislation. The Constitution, they argued, "leaves little, if any doubt that the president was expected to have the primary role of conducting the foreign policy of the United States." They added: "Congressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with the core presidential foreign policy functions, they should be struck down."

The Cheney minority report was the doctrinal basis for the Bush presidency: the unitary executive, the commander in chief ruling in wartime by fiat and, ultimately, torture being defined as whatever the president, not the Geneva Conventions, said it was. Addington's authorship of the Cheney Iran-Contra report was largely overlooked until fairly recently, but his deeper connection to that scandal and its resonance have received little attention.

Next page: Addington was part of what became known within the CIA as the "Lawless Group"