REVIEW & OUTLOOK
Mukasey's Constitution
The attorney general designate refuses to be Congress's yes-man.
While nothing emerged from the confirmation hearings last week to prevent Judge Michael Mukasey from becoming Attorney General, the questioning did show that he will be his own man and won't let himself be intimidated into adopting any Senator's personal interpretation of the Constitution.
On Wednesday, Judge Mukasey explicitly repudiated the controversial 2002 Bybee memo, which argued for an expansive view of Presidential authority regarding the Geneva Convention and torture. "The Bybee memo, to paraphrase a French diplomat," said Judge Mukasey, "was worse than a sin, it was a mistake. It was unnecessary." And on his independence of mind as Attorney General in matters of bedrock law or ethics, Judge Mukasey said that if he disagreed with President Bush, "I would try to talk him out of it, or leave." Democrats loved that.
Their ardor dimmed a day later, however, when Judge Mukasey's Democratic interlocutors tried to get him to declare himself on the legality of specific interrogation techniques, in particular on "waterboarding" (simulated drowning). Mark us down as thinking it a sign of Judge Mukasey's character to have finally told the Senators that he would not put the careers or "freedom" of the interrogators of captured terrorists at risk "simply because I want to be congenial" with the Senators' views on waterboarding.
On the issue of executive authority for warrantless eavesdropping, Judge Mukasey was also robust, and refreshing. The President, he said, "does not stand above the law. But the law emphatically includes the Constitution." And that Constitutional authority, he said, includes the President's power to defend the country.
This was not what Senator Pat Leahy and his colleagues wanted to hear, and they groused publicly, as is their habit. But aren't these the same Members who had said going in to the hearings that they didn't want a yes-man as Attorney General? We would hope that includes not taking dictation on Constitutional interpretation from individual Members of Congress.
