People do not seem to be paying much attention to the confirmation hearings of Michael Mukasey, Alberto Gonzales's possible successor as U.S. Attorney General, but they need to. Mukasey is giving some of the most frightening testimony Washington has seen since the Gonzales hearings.
Mukasey has refused to repudiate Gonzales's argument that torture is acceptable in the interrogation of terrorist suspects. He has also refused to specifically state that waterboarding is illegal.
Which is, of course, terrible, but it is nothing new. President Bush has always maintained that torture techniques are acceptable for interrogation. His arguments that "we do not torture" are childishly semantic. What good does it do to say America will not torture if the Bush administration leaves the definition of torture open to their free interpretation?
What is worse is Mukasey's willingness to continue to assert that the president has constitutional authorities that Congress is not allowed to limit. Mukasey doesn't simply think Congress shouldn't interfere with presidential perogative, he thinks it can't. IN a story that aired this morning, NPR's Nina Totenburg quotes Mukasey as saying that "Congress cannot under the Constitution act to trump the Presidential perogative as Commander-in-Chief."
But wait, there's more. From the confirmation hearing, we get this exchange between Sen. Patrick Leahy and Mukasey:
Leahy: Can the President put someone above the law by authorizing illegal conduct?
Mukasey: If by illegal you mean contrary to a statute but within the authority of the President to defend the country, the President is not putting somebody above the law, the President is putting somebody within the law.
In other words, Mukasey believes not only that the President can himself operate outside of th law in defense of the country, he can designate anyone he wants to do the same, and it is all perfectly legal. No law Congress can pass -- none! -- can prevent the President from exceeding the law.
I find the words "putting somebody within the law" very strange. Admittedly I am no lawyer, but to me it seems that a person either acts within the law or outside of the law. The President has no authority that I know of to "put" people in or out. Deciding who breaks the law or not would be the responsibility of a judge. So Mukasey is arguing not only that Congress cannot prevent the President from breaking the law, but also that the President has interpretive authority I thought belonged to the judicial branch.
How far are we from the argument that Congress and the Supreme Court are simply unnecessary?