Supporting Mukasey: Selling Out the Constitution
It is shocking to see those who should know better supporting and in some cases practically fawning over the nomination of Michael Mukasey for Attorney General. There is simply no excuse for anyone who cares about fundamental rights and civil liberties to support Mukasey’s nomination. What has surprised me is that some of those people I assumed were allies in the fight to close Guantánamo, end arbitrary detentions carried out under the rubric of “enemy combatant,” stop torture and say no to kangaroo courts for alleged terrorists, are willing to look the other way and let the President’s nominee become Attorney General.
As have many, I have been incredibly disturbed over the path this country has taken since 9/11. We have become an outlaw nation engaged in the very inhumane practices we formerly condemned in abusive dictatorships. Not that we were perfect before, but at least there was embarrassment about serious violations of fundamental rights. Since 9/11 that has all changed: we are now a country of torture, disappearances, indefinite detentions and special military courts that are outside the time-tested criminal justice system. We are in a Constitutional crisis where the entire system of checks and balances and limits on executive power have been undermined. People of conscience know that we must try and bring our country back to the rule of law—the principle is authority under law—not an executive that it is the law.
What does this dictate in the next attorney general? The struggle over this nomination is a key place where the fight must begin to restore our liberty. Democrats in Congress, Republicans who have any humanity, lawyers, scholars and others must say “enough.” It is not sufficient to have a nominee with a judicious personality or buy into the argument that the President can nominate someone who represents his legal views. That time was over long ago. Those legal views lead to the abandonment of the Geneva Conventions, war crimes and torture. Permitting and confirming the President’s choice to go forward is to compound gross illegalities. A judicious personality, as some claim for Mukasey, is meaningless, if the nominee’s legal opinions are antithetical to everything this nation should stand for.
The qualifications necessary for a new attorney general could not be clearer. No Attorney General should be confirmed unless he or she agrees to close Guantánamo and other off shore prisons, end extraordinary renditions, end imprisonments of so-called enemy combatants, end the misuse of material witness warrants, stop the torture program, and end kangaroo trials for alleged terrorists. No Attorney General should be confirmed who does not promise to begin investigations of those officials involved in the torture program, the rendition program and the other scandals that have plagued this administration. These are the minimum requirements. Those who would vote or support an Attorney General who is unwilling to insure the fundamental protections are part of the problem. The solution is to stand for what is right and just. This is not about politics; its about the Constitution and fundamental rights.
Now let us take a moment and see if Mukasey fits the criteria necessary to bring our country out of what Vice-President Cheney proudly referred to as working the “dark side.” Mukasey has never made affirmative statements rejecting the administration’s policies and practices on these issues. In fact, to the extent he heard cases concerning these questions as a judge, he ruled in the Bush administration’s favor on what was clearly it’s misuse of a material witness warrant to hold Jose Padilla in custody. (A “material witness” warrant can hold a witness with no need to show that you did anything wrong.) Mukasey then upheld the administration’s detention of Padilla as an “enemy combatant” with minimal evidence. In his op-ed writing for the Wall Street Journal he advocates special trials for alleged terrorists, supports some of the worst provisions of the U.S. Patriot Act that threaten First Amendment rights, and minimizes the roundups of non-citizen Muslim men after 9/11. Not only does Mukasey not fit the profile of what is needed in an Attorney General, he is the embodiment of some of the administration’s worst practices.
It is long past the time in this country when we should allow this administration to appoint an Attorney General who will not restore fundamental rights. One commentator said Mukasey should be confirmed, otherwise we will have gridlock. Gridlock is better than the alternative– a nominee who will continue this country’s descent into lawlessness. It past the time for hard questions of the nominee; this is a time to send the administration, the country and world a message—we reject the barbarisms of the Bush administration; we stand solidly behind a world where fundamental human rights are just that: fundamental. The soul of our country is at stake. The time for change is now.