“It’s a very different kind of person.” That was how Attorney General nominee Michael Mukasey described prisoners in the “war on terror.” He was trying to explain to Senator Dick Durbin why the military’s Judge Advocates General were wrong to flatly condemn interrogation techniques long recognized as violations of the Geneva Conventions. In that simple phrase, even more than in his willful evasions on whether waterboarding constitutes torture, Judge Mukasey showed what he is really made of. Deciding that a class of prisoners constitutes “a very different kind of person” is the psychological key to justifying the unjustifiable.
For a brief moment, the Mukasey nomination fight and the tide of revulsion at his equivocations offered Congress and the country a chance to redeem constitutional values. By foreclosing that opposition, Democratic Senators Charles Schumer and Dianne Feinstein have led the Senate and all of us across a dangerous line. Until now, the Administration’s illegal renditions, interrogations and wiretaps have been debated following after-the-fact disclosures. But the Senate’s all-but-certain confirmation of Mukasey, despite his evasions on waterboarding, is something new: collusion by a majority of the Washington political establishment in a specific practice recognized as uncivilized since the Inquisition.
While Schumer and Feinstein have a lot to answer for, the disintegration of meaningful opposition to Mukasey and torture was not of their making alone. From the first days after the 2006 election, key Democrats, including House Speaker Nancy Pelosi, pledged to work with the President instead of confronting him over his assertions of unlimited extraconstitutional power. Over the past six months Congress could have conducted investigations of interrogation practices, taking testimony from prisoners and lawyers otherwise barred from speaking about what they know, putting human rights law into the spotlight and establishing public consensus about waterboarding long before any nominee for Attorney General took the stand. If waterboarding is torture–which it is by every US and international standard–then the Administration is willfully violating two federal criminal statutes, the torture law and the War Crimes Act. But the Democrats have preferred a narrative about bad policies, not sordid criminality. This despite ample evidence of the Administration’s bad faith: just recently, there were revelations of a secret 2005 Justice Department memo giving interrogators broad permission to override new laws and court rulings barring cruel, inhuman and degrading treatment of prisoners. Together with that memo, Senate approval of Mukasey epitomizes Washington’s culture of retroactive immunity. Interrogators force water down the throats of detainees? Immunize them. Congress and the courts establish modest rights for prisoners? Write a secret memo. A nominee for the nation’s highest legal office professes not to know whether waterboarding is legal? Confirm him.
Judges, members of Congress and military officers can still push back; citizens can still stake out principled ground in the face of profound constitutional peril. Democrats of conscience can send a message by refusing to contribute to the Democratic Senatorial Campaign Committee, chaired by Schumer, instead contributing directly to candidates who speak out forcefully for the rule of law and senators who opposed the nomination. Groups like the Center for Constitutional Rights and the Bill of Rights Defense Committee deserve robust support for insisting that the Constitution is too important to be sacrificed to realpolitik.
The Mukasey vote demonstrates that we are talking about far more than accountability for the Bush Administration’s past abuses. What is at stake now is preventing future crimes–including, perhaps, those by future administrations. We may be at the beginning of a long struggle to restore constitutional values to American life. The Mukasey vote signifies that if the rule of law is once again to find its proper place in Washington, leadership is not likely to come from the leaders.