Court Of Impeachment And War Crimes: Democrats Preparing To Cave On Mukasey Nomination

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Friday, November 2, 2007

Democrats Preparing To Cave On Mukasey Nomination


After seven hours in a deposition hearing today on an invasive cyber attack three months ago, I can tell you I am tired, and I can tell you that chatter around the Court House and in the hallways about the health and relevance of our Democratic Party “IS NOT GOOD”.


WASHINGTON (AP) — President Bush, seeking Thursday to salvage the embattled nomination of Michael Mukasey as attorney general, defended the former judge's refusal to say whether he considers waterboarding as illegal torture. But the nomination suffered another setback in the Senate.

Sen. Edward Kennedy, D-Mass., said that Mukasey's unwillingness to answer definitively on the legality of the interrogation method that simulates drowning increases chances that it could be used against U.S. troops.

"I therefore intend to oppose this nomination," Kennedy said in remarks prepared for the Senate floor. "Judge Mukasey appears to be a careful, conscientious and intelligent lawyer, and he has served our country honorably for many years. But those qualities are not enough for this critical position at this critical time."

On the upside for the administration, Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina announced they would support Bush's nominee.

Bush said it was unfair to ask Mukasey about interrogation techniques on which he has not been briefed. "He doesn't know whether we use that technique or not," the president told a group of reporters invited into the Oval Office.

Further, Bush said, "It doesn't make any sense to tell an enemy what we're doing."

Sen. Chuck Schumer, D-N.Y., whose vote may decide whether Mukasey's nomination advances from the Judiciary Committee next Tuesday, said he has not decided but defended his fellow Democrats who have.

"I do not think Democrats are mistreating him at all," Schumer told reporters.

Prospects for Mukasey's confirmation have dimmed because of his refusal to equate waterboarding with torture. Three of the 10 Democrats on Judiciary already had said they'd vote against him.

In a potentially ominous sign for the administration, Majority Leader Harry Reid, D-Nev., told reporters he could not guarantee a floor vote if Mukasey's nomination fails in committee.

"I really believe in the committee process," said Reid, who has not announced how he would vote. "If I'm asked by members of the committee to stay out of the fray, I am willing to do that."

Bush later Thursday raised the stakes about Mukasey in a speech to the conservative Heritage Foundation.

"It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on his willingness to go on the record about details of a classified program he has not been briefed on," Bush told his audience. "If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general. That would guarantee that America would have no attorney general during this time of war."

Bush called on the Senate to promptly approve Mukasey, saying the nation needs to have an attorney general in place to help wage the war on terror.

Without saying whether interrogators use waterboarding, a technique that simulates drowning, Bush said, "The American people must know that whatever techniques we use are within the law." Asked whether he considers waterboarding legal, Bush replied, "I'm not going to talk about techniques. There's an enemy out there."

Mukasey's confirmation seemed assured two weeks ago but now increasingly is in doubt.

Freshman Sen. Sheldon Whitehouse, D-R.I., said Wednesday he would oppose the nomination. Mukasey's refusal to say that waterboarding is "unconditionally wrong" would leave open the possibility that U.S. agencies could cross a moral and legal line and use it on detainees, Whitehouse said.

"If we allow the president of the United States to prevent or to forbid a would-be attorney general of the United States ... from recognizing that bright line, we will have turned down that dark stairway," Whitehouse said. "I cannot stand for that. I will oppose this nomination."

Senate Majority Whip Dick Durbin, D-Ill., also a member of the Senate Judiciary Committee, followed Whitehouse to the floor to add his opposition.

"As good a person as he may be, his response to this question, this basic and fundamental question ... leaves me no alternative but to oppose Judge Mukasey's nomination to be attorney general of the United States," Durbin said.

Sen. Joe Biden, D-Del., announced earlier this week that he would vote no.

Bush, in a meeting with reporters in the Oval Office, said he was concerned that some people "have lost sight of the fact that we are at war with extremists and radicals who want to attack us again." He said it was important that Congress approve the laws, financing and personnel necessary to combat U.S. enemies.

He said the Senate's failure to confirm Mukasey promptly was "not good for the country."

Friday, November 2, 2007



Speaking to the conservative Heritage Foundation in Washington, President Bush yesterday strongly criticized the Democratic-led Congress' national security priorities, criticizing the delay in the confirmation of Michael Mukasey as the next attorney general "during this time of war." Bush said, "When it comes to funding our troops, some in Washington should spend more time responding to the warnings of terrorists like Osama bin Laden and the requests of our commanders on the ground, and less time responding to the demands of bloggers and Code Pink protesters."

The AP reports Bush "compared Congress' Democratic leaders Thursday to people who ignored the rise of Lenin and Hitler early in the last century, saying 'the world paid a terrible price' then and risks similar consequences for inaction today." The Los Angeles Times says Bush "stressed the need to remain vigilant against a potential attack and his differences with Congress about a broad swath of national security issues."

The New York Times reports the President defended the nominee "in a speech and in an Oval Office interview, where he complained that Mr. Mukasey was 'not being treated fairly' on Capitol Hill." The effort, says the Times, "suggests that the White House believes it can combat criticism of Mr. Mukasey and his views by appealing to public concern about terrorism."

Media reports particularly noted Bush's suggestion that if Mukasey is rejected by the Senate, he will not nominate a replacement. The Washington Times titles its front-page story "IT'S MUKASEY OR NO ONE, BUSH WARNS." NBC Nightly News reported Mukasey's nomination "does look increasingly shaky ahead of next week's vote, and if it does fail, the President suggested today that he may not nominate anybody else, leaving him without an attorney general, potentially, for the rest of his term." ABC World News also reported the President "spent much of his day trying to save the nomination."

McClatchy reports, "If the Senate rejects Mukasey because of his stand on waterboarding, Bush said, 'they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general and that would guarantee that America would have no attorney general during this time of war.'"

Bush counselor Ed Gillespie said on CNN's The Situation Room, "We believe that if Judge Mukasey is given an up-or-down vote on the floor of the Senate, he will be confirmed." In his "Washington Sketch" column for the Washington Post, Dana Milbank writes, "Americans, many of whom get their information about medieval torture from Monty Python and Mel Brooks, might be inclined to agree with Cheney: 'Waterboarding,' after all, sounds like a benign cross between water skiing and snowboarding."

Reid: No Vote Without Committee Approval The Politico reports Senate Majority Leader Harry Reid said yesterday "that the Senate would not hold a floor vote on" the Mukasey nomination if it "is rejected by the Judiciary Committee." The Wall Street Journal says Mukasey "would likely still win a majority vote in the Senate."

USA Today reports "Sen. Edward Kennedy, D-Mass., became the fourth Democrat on the Judiciary Committee to say that he will vote against...Mukasey. Other Democrats on the committee, including Mukasey's Democratic patron, Sen. Charles Schumer of New York, have not said how they will vote Tuesday." The Washington Post says "no Democratic lawmaker has found himself in a tighter spot than...Schumer," who "had eagerly recommended the former federal judge as a consensus candidate." The New York Times reports Schumer "real concerns had been raised in his mind about whether Mr. Mukasey would show independence from the White House on controversial issues."

The Hill reports "Republicans hope they can win over" Sen. Dianne Feinstein, "given that she broke ranks and sided with committee Republicans in August to send the nomination of Leslie Southwick as an appeals court judge to the Senate floor. Southwick was later confirmed over strong Democratic objections."

Bush May Use Recess Appointment The Los Angeles Times reports "there is speculation that Bush might install Mukasey during the congressional holiday break. That recess appointment would enable Mukasey to serve unconfirmed until a new Congress convenes, and Bush leaves office, in January 2009."

WPost Urges Mukasey's Confirmation The Washington Post editorializes that the Senate "should confirm Mr. Mukasey, who is far more independent and qualified than either of Mr. Bush's previous two nominees."


Attorney general-nominee Michael Mukasey got support from two key Democrats this afternoon, virtually guaranteeing that the 19-member Senate Judiciary Committee will vote Tuesday to endorse his confirmation.

The decision by Sens. Charles Schumer of New York and Dianne Feinstein of California followed chairman Patrick Leahy's announcement that he would vote against Mukasey because the former federal judge has refused to define waterboarding as torture.

"This is an extremely difficult decision," said Schumer, who sponsored Mukasey. He added, however, that he "is not my ideal choice."

Here's his full statement.

Feinstein said, "First and foremost, Michael Mukasey is not Alberto Gonzales," the former attorney general who resigned in September after months of questions about his honesty. "Rather, he has forged an independent life path as a practitioner of the law and a federal judge in the Southern District of New York."

Here's her full statement.

Including Leahy, five of the committee's 10 Democrats have said they would vote against Mukasey. But with Schumer and Feinstein siding with all nine Republicans, Mukasey's nomination would go to full Senate for confirmation.

See our earlier post about Leahy's announcement.

Following is the statement issued today by Senator Charles E. Schumer, Democrat of New York, announcing that he will vote in favor of President Bush’s nominee for attorney general, Michael B. Mukasey.

I will support Judge Michael Mukasey for attorney general.

I have spent the last nine months doing everything I can to get new leadership at the Department of Justice, and I believe the job will not be finished until we get a strong and independent attorney general. I believe Judge Mukasey is that type of person. Should we reject him, it is almost certain that an acting, caretaker attorney general will take office without the advice and consent of the Senate. Inevitably, that would enable those in this administration, who do not believe in the rule of law, and have done things that caused even former Attorney General Ashcroft to threaten resignation, to have the complete upper hand.

Only a strong and independent attorney general can return the Justice Department to what it once was and should always be. Under this administration, that nominee will certainly never share our views on issues like torture and wiretapping. The best we can hope for is someone who is independent, has integrity, will put rule of law first and, above all, will clean the stench of politicization out of the Justice Department. I believe Judge Mukasey will be that type of attorney general.

This is an extremely difficult decision. When an administration, so political, so out of touch with the realities of governing and so contemptuous of the rule of law is in charge, we are never left with an ideal choice. Judge Mukasey is not my ideal choice. However, Judge Mukasey, whose integrity and independence is respected even by those who oppose him, is far better than anyone could expect from this administration. He is recommended by and reminds me of Jim Comey, another Bush nominee who — while he didn’t agree with us on the issues — showed the kind of independence and integrity this department needs.

I would also like to say something about torture, particularly waterboarding. I deeply oppose it. I supported Senator Kennedy’s amendment in 2006 and am a co-sponsor of his bill in this Congress. Unfortunately, this nominee, indeed any proposed by President Bush, will not agree with this. I am, however, confident that this nominee would enforce a law that bans waterboarding as I hope it will.

This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Judge Mukasey is a lawyer’s lawyer. He will not leap to quick judgments. When we want him to do so, such as on torture, we will be disappointed. But when he resists those in the administration who want quick and facile answers, so they can get their way, so they can roll over civil liberties and blot out separation of powers, it is they who will be disappointed.

I realize that, should he become attorney general, Judge Mukasey and I will disagree on many issues. I have told him that I will battle just as fiercely against him as I did against previous attorney generals when we disagree.

These are troubling times at the Justice Department. We cannot afford or allow the department to languish and limp along for the next 14 months. I deeply esteem those who believe the issue of torture is so paramount that Judge Mukasey’s views on it should be the sole determinant of our vote. But I must respectfully disagree. The Justice Department is a shambles: politicized and demoralized. The belief and hope that Justice Mukasey, with his experience, independence and integrity, can restore the department motivates my vote.


Democrats' insistence on a torture declaration is unfair and could leave the Justice Department without a leader, the president says.

By Richard B. Schmitt, Los Angeles Times Staff Writer
November 2, 2007

WASHINGTON -- President Bush on Thursday raised the stakes in his contest with Senate Democrats over the nomination of Michael B. Mukasey as attorney general, saying they were subjecting the nominee to a unique and unfair standard and could cause the Justice Department to be left without leadership at a critical juncture.

Bush, in his most forceful remarks to date on the troubled nomination, strongly defended Mukasey's refusal to say whether Mukasey believed that an interrogation technique known as water-boarding was illegal torture.

The issue has become the defining question for Senate Democrats in advance of Tuesday's Senate Judiciary Committee vote on whether to confirm the retired federal judge to succeed Alberto R. Gonzales.

"If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general," Bush said in a speech to the Heritage Foundation, a conservative think tank in Washington.

"And that would guarantee that America would have no attorney general during this time of war."

Mukasey has declined to offer an opinion on the legality of interrogation methods, saying he has not been briefed on which programs the administration is using. He has also said he does not want to make an uninformed judgment that could tip off terrorism suspects or expose American interrogators to legal action.

"It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on his willingness to go on the record about the details of a classified program," Bush said.

Bush's declaration appeared to do little to stem Democratic opposition to the nominee. On Thursday, Sen. Edward M. Kennedy (D-Mass.) became the fourth Democrat on the judiciary committee to declare his opposition to Mukasey.

The panel's chairman, Sen. Patrick J. Leahy (D-Vt.), is expected to announce his position at a briefing in his home state today. Most observers think Leahy will oppose the nominee. His office declined to comment before the briefing.

Bush's comments raised the question of whether he would nominate anyone else to succeed Gonzales if the Senate rejects Mukasey. The acting attorney general, Peter D. Keisler, had planned to leave the Justice Department until Bush asked him to serve as a temporary steward when Gonzales departed in mid-September.

There is speculation that Bush might install Mukasey during the congressional holiday break. That recess appointment would enable Mukasey to serve unconfirmed until a new Congress convenes, and Bush leaves office, in January 2009.

But congressional sources said they doubted that Senate Majority Leader Harry Reid (D-Nev.) would stand for such a maneuver.

They said Reid would probably try to outflank Bush by keeping some lawmakers in Washington over the break to ensure that the chamber was always in session.

White House Press Secretary Dana Perino was asked Thursday whether Bush was saying he would not put forward any other nominee if Mukasey were rejected.

"We don't believe it would come to that," she said. "No nominee could meet the test they've presented."

Most observers think Mukasey would be confirmed if the full Senate voted on him. But Reid appears unlikely to allow a floor vote if the judiciary committee rejects the nomination.

There is precedent for the committee to forward a nomination to the full Senate without a recommendation or with a negative recommendation.

Leahy has indicated that he has no plans to permit that, but the idea could be raised by other lawmakers as a compromise.

Besides Kennedy, three other Democrats on the panel said this week they would oppose Mukasey: Joseph R. Biden Jr. of Delaware, Assistant Majority Leader Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.

Among the three Democrats most likely to vote for Mukasey -- Charles E. Schumer of New York, Dianne Feinstein of California and Russell D. Feingold of Wisconsin -- none revealed a decision Thursday.

Spokespeople said the senators were still considering their decisions.

The most intense speculation focused on Schumer, who was an early supporter of his fellow New Yorker, even though he has acknowledged wide ideological differences.

"No nominee from this administration will agree with us on torture and wiretapping," Schumer said in a statement Thursday. "The best we can hope for is someone who will rebuild the Justice Department and remain independent, even when pressured by this administration.

"I am weighing if Judge Mukasey is that person."

WASHINGTON, Nov. 1 — President Bush went on the offensive today to salvage the nomination of Michael B. Mukasey to be attorney general, declaring that Mr. Mukasey is being mistreated by some senators and that his service is urgently needed while the nation is “at war.”

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