The Gonzales Legacy

By Dan Froomkin
Special to
Wednesday, November 7, 2007; 1:14 PM

So it's come to this: A promise to enforce the law (in most cases) is enough to get an attorney general nominee confirmed by a Democratic-controlled Senate.

Dan Eggen and Paul Kane write in The Washington Post: "The Senate Judiciary Committee narrowly approved the nomination of Michael B. Mukasey as attorney general yesterday, moving him a step closer to virtually assured confirmation on the Senate floor as the new head of the troubled Justice Department.

"Sens. Dianne Feinstein (Calif.) and Charles E. Schumer (N.Y.), joined nine Republicans in voting for Mukasey, arguing that the former federal judge was the best candidate they could expect as the Bush administration's replacement for Alberto R. Gonzales, who resigned as attorney general in September under a cloud of scandal. . . .

Despite Mukasey's repeated refusal to declare waterboarding illegal, "Schumer and Feinstein said they took solace in Mukasey's assurances that he would enforce any future waterboarding ban passed by Congress. That argument prompted a robust retort from Sen. Edward M. Kennedy (D-Mass.)."

From the full text of Kennedy's remarks: "In perhaps the most stunning and hollow promise reportedly made by a nominee for Attorney General in my 45 years in the Senate, we are told that Judge Mukasey agreed to enforce a ban against waterboarding if Congress specifically passes one. We are supposed to find comfort in the representations by a nominee to be the highest law enforcement officer in the country that he will in fact enforce the laws that we pass in the future? Can our standards really have sunk so low? Enforcing the law is the job of the Attorney General. It's a prerequisite -- not a virtue that enhances a nominee's qualifications."

Richard B. Schmitt writes in the Los Angeles Times that "other Democrats on the panel, including chairman Patrick J. Leahy of Vermont, belittled the pledge that Schumer had won from Mukasey. Among other concerns, the critics said they feared Bush could veto such legislation, leaving the new attorney general with no new law to enforce against the president. They also said existing laws already clearly prohibited waterboarding.

"'The real damage of this somewhat empty argument is not its futility. The real harm is it presupposes that we do not already have laws and treaty obligations against waterboarding,' Leahy said. 'No senator should abet this administration's legalistic obfuscations . . . by agreeing that the laws on the books do not already make waterboarding illegal.'"

Also from Leahy's statement: "I wish that I could support Judge Mukasey's nomination. I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a 'confirmation contortion.' When many of us voted to confirm General Petraeus, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President's war policies. Just as I do not support this President's Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power."

From Senator Russell Feingold (D-Wis.): "In many respects . . . Judge Mukasey is a big improvement on the previous Attorney General. At this point in our history, however, the country needs more. Simply put, after all that has taken place over the last seven years, we need an Attorney General who will tell the President that he cannot ignore the laws passed by Congress. And on that fundamental qualification for this office, Judge Mukasey falls short."

Eggen and Kane note: "One of the most emotional moments yesterday came from Sen. Lindsey O. Graham (R-S.C.), a military lawyer who supported Mukasey but criticized his answers on waterboarding. Graham, who has frequently clashed with the Bush administration on interrogation and detention policies, said Mukasey is 'a good man of the law' but also urged Congress to pass legislation specifically outlawing the use of waterboarding by all government entities, including the CIA.

"'The world is not short of people and countries who will waterboard you. There's not a shortage of people who will cut your heads off in the name of religion,' Graham said. 'There is a shortage of people who believe in justice, not vengeance.'"

On Waterboarding

Scott Shane of the New York Times offers more details about the acting head of the Justice Department's Office of Legal Counsel who volunteered to be subjected to waterboarding to see if it was torture.

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