How to scrap a legal system

The Democratic Party hasn't been in such good shape for many years, quite possibly since 1964. While two very popular candidates compete for its nomination, the Republicans (as in 1964) are nominating a candidate that a large fraction of their party will never accept, and whose age is obviously going to be a problem, especially if Barack Obama wins the Democratic nomination. The country is sliding into the deepest recession, probably, since the early 1980s, most Americans have concluded the Iraq war was a mistake, and Democratic primary turnout dwarfs Republican in state after state. Faced with all this, the Democrats, particularly in Congress (where virtually every single blue-state Republican is planning the next phase of his or her life) have decided to play it safe, especially on issues of national security and presidential power. They seem above all to fear that another terrorist attack before the election (a distinct possibility, in my view, since Osama Bin Laden obviously understands how important it is for him to see the United States elect another President who will keep troops in the Muslim world) could rebound on them if, for example, they seriously try to restrict the Bush wiretapping program.

What the new Attorney General, Michael Mukasey, said yesterday, however, really needs some attention. Mukasey should not have been confirmed--and not because of his failure to take a stand on waterboarding (a stand he has now clarified). He should not have been confirmed because he affirmed the Bush/Nixon doctrine of unlimited Presidential power in matters of National Security, and any Congress with any courage and respect for the Constitution should have refused to let that pass. The country could have survived the next year with an acting attorney general, and one branch of government would have been on record supporting the rule of law. Instead, they folded.

What Mukasey said yesterday takes things to a new level. Now that we know the CIA did use waterboarding to torture some Al Queda leaders (something I inferred from a White House press briefing on December 2, 2005, more than two years ago), he announced that although this might have been illegal, the Justice Department could not possibly prosecute it, because the Justice Department had authorized it. The Attorney General has now personally claimed the right Richard Nixon claimed, to authorize any illegal act. Criminal conspiracies are now legal provided that the Attorney General is participating in them.

Readers with long memories may recall that such a scenario is of more than academic interest. The Watergate break-in was apparently authorized by the then-Attorney General, John Mitchell (although only one of two participants in the critical meeting, Jeb Magruder, ever definitely confirmed that.) But not even Mitchell had the cojones to argue that he had thereby legalized the break-in, which is what Mukasey is doing on behalf of John Ashcroft (or, very possibly, some subordinate of John Ashcroft.) An Attorney General who claims the right to exempt officers of the federal government from the enforcement of the law should, in my not very humble opinion, be impeached at once. Meanwhile, I hope at least a few editorial writers and columnists wake up and notice that Mukasey has pushed the doctrine of executive immunity to a new high. Perhaps even a Democratic presidential candidate could find time to take up the issue--and challenge John McCain to agree that the Attorney General can authorize forms of torture and confer immunity upon the torturers at the same time.