Mukasey's Radical Worldview Is Now the Norm
Yesterday's Senate Judiciary Committee hearing, featuring day-long testimony from Attorney General Michael Mukasey, was extraordinary for only one reason: for our country, what happened in the hearing is now completely ordinary. While Mukasey may be marginally more straightforward than Alberto Gonzales was -- more willing to conform to the procedural formalities of independence -- he is, ideologically, a clone of John Yoo and David Addington and is as much of a loyal adherent to the Bush/Cheney extremist worldview as Gonzales ever was.
Mukasey explicitly embraces the most extreme theories of presidential omnipotence and lawlessness and displays as much Cheney-ite contempt for the notion of Congressional oversight as the Vice President himself. He repeatedly endorsed patently illegal behavior -- including torture -- and refused even to pretend that he cared what the Senate thought about any of it. He even told Republican Senators that they have no right to pass a whistleblower law allowing federal employees who learn of lawbreaking to inform Congress about it, because such a law would infringe on the President's constitutional powers. In Mukasey's worldview, the President has unlimited power and Congress has none.
And none of this is particularly surprising, given that -- as I emphasized after his nomination was announced -- Mukasey is the federal judge who, when presiding over the Padilla case in 2002, endorsed the most tyrannical and un-American power there is, when he ruled that the President even has the power to imprison U.S. citizens indefinitely, even when detained on U.S. soil, with no process of any kind -- a position he refused to repudiate during his confirmation hearing.
None of what he said yesterday is extraordinary, despite how radical and jarring it is. Mukasey repeatedly insisted that even his most lawlessness-endorsing views are within our political mainstream, and he's right about that. It's now been seven years that our country has functioned under the radical executive power theories of the Bush administration, which include the right of the President to break the law. Congress long ago decided it would do nothing about any of it, would acquiesce to it, and thus -- as was predictable and predicted -- it has all become normalized.
Yesterday's hearing was the most potent illustration we've seen of that normalization. But it was potent not because anything happened yesterday, but precisely because nothing did happen -- and nothing will.
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All day long, in response to Mukasey's insistence that patent illegalities were legal, that Congress was basically powerless, and that the administration has no obligation to disclose anything to Congress (and will not), Senators would respond with impotent comments such as: "Well, I'd like to note my disagreement and ask you to re-consider" or "I'm disappointed with your answer and was hoping you would say something different" or "If that's your position, we'll be discussing this again at another point." They were supplicants pleading for some consideration, almost out of a sense of mercy, and both they and Mukasey knew it.
Mukasey can go and casually tell them to their faces that the President has the right to violate their laws and that Congress has no power to do anything about it. And nothing is going to happen. And everyone -- the Senators, Bush officials, the country -- knows that nothing is going to happen. There is nothing too extreme that Mukasey could say to those Senators that would prompt any consequences greater than some sighing and sorrowful expressions of disapproval. We now live in a country where the President -- and those acting at his behest (see Lewis Libby, AT&T, and Verizon)-- have the power to break the law and ignore Congress and every other aspect of government, and can do so with impunity. Digby yesterday noted:
[CNN's] Kelli Arena says the good news is that this is a very cordial hearing, without the "apoplectic fits" one is accustomed to from this committee. I don't think Kelli has ever heard about the "banality of evil."
Arena's description was absolutely correct. It was a strikingly cordial, really quite boring, atmosphere all day. Virtually every Democratic Senator, after expressing some "disappointment" in Mukasey's answers, then proceeded to lavish him with praise, eagerly assuring him that they did not want conflict and were not attempting to be partisan or acrimonious. Mukasey would nod politely and acknowledge their pleas, assuring them that he wasn't offended by their questioning, almost embarrassed at times by how obsequious they were.
The Senators and Mukasey spoke all day long about torture with such dispassion that one would have thought it was nothing more than the latest bureaucratic HUD program. They don't even use the euphemism "enhanced interrogation techniques" any more. That phrase has been so normalized that they now all know and use an abbreviation for it -- "EIT." So Senators ask questions about when "EITs" can be used and the Attorney General outlines the elusive formula he applies to determine its legality and all controversy, all passion, all intensity is completely drained out of the discussion in the U.S. Senate of our torture policies. "Torture" is now an EIT Unit.
Mukasey himself is at the extreme end of the ideological spectrum, a throwback to the pre-Comey/Goldsmith 2002 era of John Yoo. Harper's Scott Horton, who was a law partner of Mukasey's and originally endorsed his confirmation -- on the grounds that he would be more likely than other potential nominees to exhibit independence (an assessment I shared) -- had this to say after watching the hearing yesterday:
Watching Mukasey was a painful experience. . . .The Senate Judiciary Committee put Michael Mukasey to the test yesterday. And he left the hearing room as an embarrassment to those who have known and worked with him over the last twenty years, and who mistakenly touted his independence and commitment to do the right thing, come what may.
Prior to Mukasey's confirmation, Horton changed his mind about Mukasey's nomination. But Dianne Feinstein and Chuck Schumer, who single-handedly enabled Mukasey's confirmation, should be very proud.
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I long ago stopped blaming the Bush administration -- at least exclusively -- for what has happened to our political system. They were responsible in the first instance, but the rest of the country's institutions -- its media, its Congress, the "opposition" party, even the courts -- all allowed it to happen, choosing to do nothing -- or to endorse it -- once it all began to be disclosed. It wouldn't have surprised the Founders that we would have corrupt and lawbreaking political leaders, including in the White House. The idea was that there would be numerous checks on that corruption. But when those other institutions fail, or are complicit, the fault is collective.
Consider how normalized this has all become: President Bush this week issued one of his most brazen signing statements yet, contesting the right of Congress even to exercise its spending power to bar the use of funds for permanent bases in Iraq. The Washington Post's Dan Froomkin noted that not a single journalist other than The Boston Globe's indefatigable Charlie Savage even reported on this event. As Froomkin said:
The overall message to Congress was clear: I'm not bound by your laws. . . . But it's Bush's cavalier dismissal of the ban on funding for permanent military bases that really speaks volumes -- not just about his view of the role of the legislative branch, but also about his intentions for Iraq. . . . Looking for a news story about all this in your morning paper? You won't find one in The Washington Post, the New York Times, the Los Angeles Times or the Wall Street Journal.
In one sense, I understand Froomkin's indignance. It ought to be newsworthy, to put it mildly, when the President announces that he has the power to violate the law at will. But in another sense, it's not really newsworthy any longer. It's been going on for years and we've chosen to do nothing about it. We have a Government where the President is not bound by the law, and it is just as simple as that.
Almost two years ago, my book on Bush's executive power theories, How Would a Patriot Act?, was published, written immediately after disclosure of the President's illegal spying programs, and in it I wrote:
Our basic system of constitutional liberties is at risk. I say that because we are a country in which the president has said -- expressly and repeatedly -- that he has the power to act without restraints, including the power to break the law. He has not only claimed these powers but has exercised them repeatedly over the course of several years. And he still has more than two and a half years left in office. . . .
The series of controversies over the last five years involving radical and extreme government actions -- from the use of torture to illegal eavesdropping to the lawless detention of U.S. citizens -- cannot be viewed in isolation. They are but the symptoms -- the ones we have learned about thus far -- of a crisis in this country brought about by the fact that the president of the United States believes he has the power to act without restraint and to break the law. . . . What we have in our federal government are not individual acts of lawbreaking or isolated scandals of illegality, but instead a culture and an ideology of lawlessness. . . .
Whether we become a country in which the president can exercise unlimited power -- whether we will fundamentally change the type of nation we are -- will be determined by whether we allow this behavior to continue.
We have allowed it to continue, and now these "theories" are ones which people who are considered to be "reasonable," squarely within our political mainstream, can openly espouse -- just as Mukasey repeatedly pointed out yesterday. We live in a system of government where the President seized the power to act without restraints and we allowed that to happen, and so Bush's signing statement and Mukasey's defiant posture are all now normal.
* * * * * This is why Congress, when they learn of Bush lawbreaking, ends up doing nothing other than voting after the fact to legalize it. They learn Bush has been illegally spying on Americans with no warrants and they enact The Protect America Act to legalize it. They learn Bush has been systematically torturing detainees and imprisoning people with no process and they enact the Military Commissions Act to legalize it.
They learn that telecoms have deliberately broken the law for years -- laws which the Congress passed specifically to make it illegal for telecoms to cooperate with warrantless government spying on Americans -- and they are about to provide full retroactive immunity for the lawbreakers. When they do pretend to investigate, they meekly allow the administration literally to ignore their Subpoeans. Congress does that because we live in a system of lawlessness -- we have decided that the President has the power to break the law without consequences -- and because legalizing the President's lawbreaking is the only way they can be relevant.
I recall watching a Senate Foreign Relations Committee hearing back in 2002 -- by which time it was evident that the administration was intent on invading Iraq. Joe Biden, the Committee's Chairman, was practically begging the administration to allow Congress to vote to authorize the invasion. Biden knew that Bush would invade Iraq regardless of whether there was Congressional authority, and so he pleaded with the administration to recognize that there was no need to proceed without a vote since, Biden promised, Congress would vote for the war.
Biden begged the administration to realize that it would be a Better War if Congress was permitted ceremoniously to endorse it. That's the only reason the administration sought a vote -- because Congress promised ahead of time that they would give the administration everything it wanted. That has become Congress' only role, its only power: to endorse what the President decrees. Like the sad, impotent Roman Senate which existed only to lend its imprimatur to the Emperor's conduct, the Congress' only choices are -- as it did yesterday -- to plead for "re-consideration," and then, when it's not forthcoming, either do nothing or endorse the President's behavior.
The Bush administration will be gone in 11 months, but -- in the absence of some meaningful accountability -- all of this will remain. It remains to be seen whether, if there is a Democrat in the White House, any of these trends will be reversed (their two leading candidates are expressing opposition to most of these theories). Even if they are, eight years is a long time, and if we simply allow Bush to serve out the remainder of his term and have these theories remain undisturbed and unchallenged, and have all of these crimes go uninvestigated and unpunished, that will have an even more profound impact on changing our national character, in further transforming the type of country we are.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.