This is not my usual beat nor my usual way of operating, but: on this visit to the U.S. I feel obliged to note, in solidarity with Andrew Sullivan and Matthew Yglesias of the Atlantic (among others), that I hope senators will vote No on the nomination of Michael Mukasey as attorney general.
Here's the reason: The Administration has proven that it cannot be given the benefit of the doubt on questions of civil liberties, expansion of executive powers, or the conversion of its open-ended, ill-defined, decades-long state of "war" into an excuse for permanent, abusive, often secret changes in the balance of rights and powers that is America's greatest constitutional achievement.
On crucial points, Mukasey's second-day testimony amounted to a request that he and the Administration be trusted to do the right thing. Nothing against him personally, but the time for trust has passed. Unless Mukasey explicitly repudiates the most abusive parts of his predecessor's (and his President's) record, the Senate would be negligent and reckless to approve him.
A specific point: the "waterboarding" outrage. As is now becoming famous, Mukasey said this, when asked by Sen. Sheldon Whitehouse whether waterboarding was constitutional:
“I don’t know what is involved in the technique,” Mr. Mukasey replied. “If waterboarding is torture, torture is not constitutional.”
Either way you slice it, this answer alone is grounds for rejecting Mukasey. If he really doesn't "know what is involved" in the technique, he is unacceptably lazy or ill-informed. Any citizen can learn about this technique with a few minutes on the computer.* Any nominee for Attorney General in 2007 who has not taken the time to inform himself fits the pattern of ignorant incuriosity we can no longer afford at the highest levels.
So, if Mukasey was telling the truth in this answer, he is too lazy for the job. If he was lying, he's too dishonest. Before holding a vote, the Judiciary Committee must force him to re-answer the question, in writing if he wants: Take a day or two to inform yourself about waterboarding, Judge Mukasey. And as candidate for the highest law-enforcement office in the land, tell us Yes or No whether in your view it is constitutional.
Something similar is true with Mukasey's answers about presidential powers and the wiretapping law. He was trying to get by with: it depends on the circumstances, trust us to work this out the right way. No. Again, at this stage the Administration cannot be trusted.
To approve Mukasey at this point would be to say: your President apologizes for nothing; your Vice President laughs at the idea of explaining his ideas or influence; your predecessor is under investigation over whether he flat-out lied to us in hearings; and you won't explicitly criticize the policies you're being asked to correct. But you're all right with us!
If Mukasey will come back and say: Here exactly is what I believe, about presidential powers and about torture, then (depending on his answers) OK. If he says: don't worry, we'll work it out, not OK.
Early in an Administration, any president deserves a fair amount of deference in his choices for the cabinet. At this point in this Administration, the burden of proof is entirely on the nominee.
* More than a year ago, David Corn posted photos of actual waterboards, taken in a Cambodian prison by (my friend) Jonah Blank. In Cambodia, they're used as illustrations of the atrocities committed by the Khmer Rouge.
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