newsrackblog.com

In one very important way, impeachment does — and maybe soon.

—

The news was quickly buried under an avalanche of financial crisis, Palin, debate, and election horse race stories, but it was significant all the same.  In late September, Murray Waas reported in Atlantic.com that Department of Justice investigators were zeroing in on former Attorney General Alberto Gonzales’s July 24, 2007 testimony to Congress.  In this testimony, Gonzales asserted that in a critical March 10, 2004 meeting — immediately prior to the notorious “hospital confrontation” between Comey, Ashcroft, Gonzales, and Card — a key group of Congressional members privy to intelligence secrets* shared a “consensus” with Cheney, Addington, and Gonzales that the NSA’s warrantless surveillance program described to them should go forward.

Unfortunately for Gonzales, this assertion was denied** by many of the congressmembers involved. Waas:

Gonzales said that he had told the congressional leaders “in the most forceful way that I could [about] … the disagreement that existed.” Gonzales said that in response to that, there had been a “consensus in the room” from the legislators, “who said, ‘Despite the recommendation of the deputy attorney general, go forward with very important intelligence activities.’ ”

This assertion that there had been “a consensus” is currently under investigation by the Justice Department’s inspector general as possible perjury or as a false statement under oath.

According to Waas, Gonzales also developed after-the-fact “notes” on the March 10 meeting, at the direction of President Bush; beginning with one sentence(!) , jotted down on March 11.  Gonzales asserted he wrote up the remainder of his notes on the March 10, 2004 meeting “the following weekend,” i.e., March 13 and 14.

But on March 11, when he renewed the NSA warrantless surveillance program, Bush could only have had Gonzales’s say-so and the alleged one sentence note as “documentation” of Congressional acquiescence.  According to accounts like those by the Washington Post’s Barton Gellman, Bush finally modified his March 11 order on March 19 — well after being informed by Comey, on March 12, of likely widespread resignations at the Department of Justice should the program continue in its prior form.

The NSA warrantless surveillance program may well have always been an impeachable offense.  Its continued approval through March 19, 2004, despite the March 12th disapproval of Acting Attorney General Comey — was even more certainly one, at least in my view and that of many others.  Should the March 11th reapproval have been based on evidence of congressional “acquiescence” known to be false or even suborned, that would be yet further grounds for Bush’s impeachment.

But I think it’s also crucial that by feigning that evidence — and by restating that lie in his July 24, 2007 testimony before the Senate Judiciary Committee — Alberto Gonzales can be impeached as well. And there’s nothing President Bush could do to stop that — not even a pardon.

Read the rest of this entry »

From the Jane Mayer interview by Amy Goodman on Democracy Now!:

JANE MAYER: Many of the detainees have said they lied to stop the torture. Shaykh Ibn al-Libi was perhaps one of the most fateful cases, because he was taken into custody by the CIA, sent to Egypt, where he was basically beaten up. While he was in Egypt, this was before the war in Iraq. He was asked, “Are there weapons of mass destruction in Iraq? And are there connections between al-Qaeda and Saddam Hussein?” He later said he had absolutely no idea. He didn’t even really know what weapons of mass destruction were. But he told his interrogators whatever they wanted to hear. And what he told the interrogators made its way into Colin Powell’s speech to the UN, which was one of the major turning points in selling the war in Iraq. Colin—

AMY GOODMAN: February 5, 2003, five weeks before the invasion.

JANE MAYER: Right. And it was a speech that was very powerful, convinced an awful lot of people who were on the fence about whether we needed to go to war. One of the things Powelll talks about in that speech is the information that came from al-Libi saying that there was WMD and that there were connections between terrorists from al-Qaeda and Saddam Hussein.

Almost one year after Powell’s speech, this same detainee, Shaykh Ibn al-Libi, recanted. He told the CIA he made it up. He said he had to say something, because they were killing him.

You know, one of the things, though, that I think people haven’t picked up on in that story is not only the disinformation that came out of this program, but that there were really doubts about al-Libi at that time that Powell gave that speech, and Powell was not told about the doubts. The DIA, the Defense Intelligence Agency, already suspected that al-Libi was fabricating things, because his confessions lacked all the kind of detail that’s convincing. And the DIA was sounding an alarm, but Powell wasn’t told about this when he gave his speech.

AMY GOODMAN: And what was Cheney’s role?

JANE MAYER: Well, Cheney vetted the speech, so he—his office was just deeply involved in almost all of these issues. You know, David Addington was up in Congress not very long ago, and he testified. And again, people didn’t pick up on this much. But he said as kind of an aside that he was very involved in the CIA’s interrogation program, which is extraordinary. Now, why is the lawyer for the Vice President involved in the CIA’s interrogation program? Well, when the history of this is told—and I did my best to tell it in The Dark Side—you’ll see there’s sort of fingerprints from Cheney and the people in his office all over this program.

While this hasn’t escaped attention before now, there are two reasons the bolded parts remain important and worth emphasizing, I think. First, obviously, a key convincing spokesman went to the United Nations with a story that was built on sand — leading to the deaths and maimings of (at minimum) tens of thousands of Iraqis, and thousands of Americans. Second, perhaps less obviously, there was an effort — a conspiracy, to put it bluntly — to have him do so. I’ve compiled a short and no doubt partial list of other major instances of this kind of deception here — “Practice to Deceive.”

For people to argue that torture or deception leading to war (or, in this case, both) were somehow done in good faith is to “hear no evil, see no evil, and speak no evil.” It’s wilful blindness in the face of overwhelming evidence. In my view, these were part of a conspiracy of war crimes, crimes against U.S. statutes, and impeachable acts. There must be accountability for them; all I can do, I suppose, is point that out — and hold it against politicians, pundits, and others who argue otherwise.

=====
UPDATE, 7/29: Support Dennis Kucinich’s call for impeachment hearings here; your name will be forwarded to your Representative.

In the years and decades and centuries ahead, John Yoo’s and David Addington’s testimony before the House Judiciary Committee last week will become a simple, memorable marker about just how low this country fell in the early years of the 21st century. A former Department of Justice counsel and a current chief of staff to the Vice President of the United States proved unwilling to say that the president could not legally order torturing children or burying people alive.

Since last week’s events are well known enough, I’ll make just two points, and ask a question.

First, torture and cruel, inhumane, or degrading abuse of children by United States military, intelligence personnel, and/or U.S.-hired contractor thugs is not a hypothetical situation. I’ll list just two cases, but more have been reported, and no doubt yet more remain unreported. Abu Ghraib sergeant Samuel Provance told a German news team about “interrogation specialists” pouring water on a boy, driving him around in the cold night, smearing him with mud — and then displaying the result to his father, who (Provance was told) broke and promised to tell all he knew. In an even grimmer story, Tara McKelvey reported (in her 2006 book “Monstering) about at least one alleged rape of an underage detainees — photographed by a fellow soldier. The investigation was desultory at best. In cases like these, the cruelties and/or the whitewashes can be traced to policies made in America.

Second, the way in which Addington and Yoo answered — that is, failed to answer — Congressional questioning should itself set off emergency sirens for our democracy. These two are, in a very real sense, enemies of our state. They are our enemies. Whether delivered with Addington’s coolly contemptuous attitude or Yoo’s baby-faced pseudo-naivete, we simply can not afford to have legitimate questions to the executive branch by the legislative one “answered” this way. To pretend to fail to understand the distinction between “would” and “could” is the kind of ‘trick’ a 3rd grader wouldn’t get away with. Contempt of this sort by the Bush administration should be … that is, should have been… met by Congress with contempt of its own — direct, immediate, Congressional sergeant at arms, off to jail you go contempt.

Meanwhile, at least the future narrative is clear. We were attacked. We panicked. Our elected leaders in the White House threw away our country’s honor and our alleged principles, and set about subverting our own political system in order to do so and to get away with it. Meanwhile, our elected representatives in Congress did next to nothing to prevent it.

People have often tried to lay the abuses in Abu Ghraib and elsewhere at the feet of so-called “bad apples.” The future will know those “bad apples” didn’t fall far from a corrupt and rotten tree, and can roll the tape above to prove it. The question for us is how far and deep that rot extends — to the White House only? To its alleged “check” and “balance” on Capitol Hill in the “opposition” party — capable of belated video theatrics, but not of real oversight?

Or does it extend deeper yet? A recent study (by WorldPublicOpinion.org) suggests that the United States is more akin to brutalized societies like Egypt, Azerbaijan, or Russia than those like Europe’s when it comes to accepting torture under some or even any circumstances. To agree that the state may completely own an individual, make this one say something … anything, turn that one into a screaming thing — that, to me, seems a kind of original sin. As we approach our Independence Day with the usual fanfare, self-congratulation, parades, and hot dogs, I may wish that this country were not so easily tempted to that sin. But wishing doesn’t make it so. Maybe 9/11 really did change everything. Maybe the terrorists have really won.

In today’s Washington Post article “Sentence in Memo Discounted FISA,” Robert Barnes reports that Senators Whitehouse and Feinstein have finally pried loose an Office of Legal Counsel (OLC) opinion purporting to provide legal cover for ignoring FISA (the Foreign Intelligence Surveillance Act) as the exclusive means by which electronic surveillance may be conducted. Barnes quotes John Yoo:

“[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.’

Or as Barnes puts it, “In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.”

Now we’ve known that Yoo is a dangerous authoritarian hack for years, so yet more evidence of that may evince nothing but yawns. Still…

• It took 2008-2001 = 7 flipping years for this opinion to come to light — and even now only to Senators.
• As ‘emptywheel‘ (”firedoglake”) writes, the document is part of a set of four by Yoo that Senator Whitehouse quoted from in the Senate late last year, all of which purport to let the President be the principal arbiter of what his Article II powers are under the Constitution. Yoo was writing the recipe for a silent putsch.
• As Barnes reports, the Department of Justice continues to rely* on the 2001 authorization of military force (AUMF) against Al Qaeda as justification for warrantless electronic surveillance — despite a vociferous denial by the Majority Leader at the time, Tom Daschle, that the legislation gave such authority.

I also want to add another point to these, one that’s smaller in some ways, perhaps important after all in others.

After New York Times published Risen and Lichtblau’s initial story on the NSA warrantless electronic surveillance, it developed that the publication was prompted in large part by Risen’s threat to scoop his own story by publishing it in his then-upcoming book “State of War.” In the course of the last few days I’ve been poking around the Internet looking for background and discussion of those decisions — first, not to publish, and later to publish after all. One of the tangential items that hunt turned up was “Risen vs. Risen,” a comparison, by Slate’s Jack Shafer, of Risen’s book with his and Lichtblau’s reporting. Shafer sniffed at the allegedly poorer standards in the book:

…when Risen writes in his chapter about the “small, select group of like-minded conservative lawyers” in the Justice Department who Attorney General John Ashcroft assigned to write legal opinions to support the secret NSA surveillance. “They may have been some of the same lawyers involved in the legal opinions supporting the harsh interrogation techniques,” Risen writes, bringing two thoughts to mind: 1) They may also not be and 2) such unsupported speculation would never pass muster in the Times.

Well, Shafer can rest his little head easier tonight. In fact, it was exactly the same lawyer involved.

I’m no expert on the journalistic protocols involved here. I assume if Risen wrote “they may have been some of the same lawyers involved ” it’s because sources told him “they may have been some of the same lawyers involved.” And that’s good enough for me — even if there weren’t a lawless, stonewalling mafia of an executive branch involved.

What gets me is Shafer’s snotty attitude towards a journalist by someone allegedly concerned with journalistic standards. Shafer both leavened and sharpened the charge in his conclusion:

Enough of my ungrateful carping: James Risen deserves our thanks for both his book and his newspaper work. But my point stands. The fundamental difference between good book chapters and good newspaper articles boils down to this: The highest journalistic standard in New York book publishing is one of liability. “Did we libel anybody?” At newspapers like the Times it is, “Is it true?”

Given this week’s news, Mr. Shafer, your point doesn’t stand either. Actually, this is just the coup de grace — it never did. What Risen said was true either way, and worthwhile writing either way, and it was shabby to imply otherwise.

And let me suggest a second set of questions to distinguish Risen the book author from Times editors’ Hamlet-like indecision over his and Lichtblau’s story: do we fail the country and our journalistic mission by not publishing this story? Or do we sit around and wait for someone braver?

=====
* Memorandum from Brian Benczkowski, Deputy Attorney General to Senators Whitehouse and Feinstein, published at “firedoglake” via “emptywheel”. As a side note, it took the Post 2 days longer than this (excellent) blogger to report the story — and the Post failed to supply any links like this one to supporting documentation.. Advantage: blogosphere.

Your former Undersecretary of Defense and mine, Douglas Feith, speaking with Philippe Sands (”The Green Light,” Vanity Fair about the good old days when he played a role in approving torture:

“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.”

Crudely indeed. This rings a couple of bells for me. One is Sir Richard Rich in Robert Bolt’s “A Man for All Seasons.” Early on in the story he disdains a mere teaching position Thomas More offers him, preferring the wealth and glamour of being a player in the time of Henry VIII. Ultimately he perjures himself to send Thomas More to the executioner’s block and gain, in return for an appointment to high office.

As Bolt has More put it, Sir Rich gave his soul not even for the whole world, but for Wales. Feith gave his… for what? The chance to brag to a disgusted interviewer. And, I suppose, for a teaching position at Georgetown.

The other memory the statement evoked is still a sad one for me: Eric Alterman’s recent remark, at a book reading I attended, that “principles are a form of moral vanity.” Alterman might well argue that opposing impeachment as inopportune and impolitic is not the same as undermining solemn treaty and human rights obligations. On the other hand, it’s precisely the latter transgressions that impeachment would punish (or would have punished). Which is worse — mocking the principle of human rights, or mocking the principle that justice should be done for abrogating those rights?

I’ll add that I’ve been reading Alterman’s book — not his most recent one, but the more scholarly and interesting “When Presidents Lie.” More on that another time, maybe. Suffice it to say two thumbs up, and one reader still puzzled by Alterman’s concluding advice to presidents in that book (“…do not, under any circumstances, lie”), set against his allergic reaction to the remedy of impeachment for those who do so and worse.

=====
EDIT, 4/10: asterisks in title. I had no complaints, but the title appears via RSS feed in aggregators and some blogs, so a belated effort not to offend others seemed called for.

# Kenneth Pollack — Incredibly Enough, He’s Even Stupider Than You Thought (Jonathan Schwarz, “A Tiny Revolution”) — Schwarz reviews Pollack’s book “Persian Puzzle”, in which Pollack thinks it odd and irrational that Iranians were stocking up on naval equipment, which implied to Mr. “Threatening Storm” that they were spoiling for a fight with the good old U.S.A. Turns out they had a pretty decent reason for doing so — the US was sinking Iranian ships. Schwarz:

…it’s standard in government bureaucracies for people to become blithering idiots who have no idea what’s going on right in front of their face. So Pollack isn’t unusual in that regard. But it takes a special man to use his own blithering idiocy about his own country as justification to believe another country is mysterious and incomprehensible. Kenneth Pollack is that special man.

# This is the way, step inside (Spencer Ackerman, “toohotfortnr”) — Ackerman wades into Jonah Goldberg’s “Liberal Fascism” book and finds its definition of fascism overbroad, not applicable to Goldberg’s “exhibit A” — the Wilson era — even by Goldberg’s own definition. Ackerman concludes:

I’m starting to think Jonah Goldberg is not an intelligent man.

# Bad News for Mike Gravel (Jim MacDonald, “Making Light”) — New Hampshire citizen gets a two question phone call from a pollster:

“Are you planning to vote in the Democratic primary?”
“Sure am.”
“Who are you planning to vote for?”
“Mike Gravel.”
“Oh, you mean you’re going to vote in the Republican primary.”
“No, Mike Gravel is a Democrat. Two-term Democratic senator from Alaska.”
“Are you sure?
“Yes.”

# I can press when there needs to be pressed (WIIIAI, “Whatever it is, I’m against it”) — WIIIAI observes today’s Bush interviews with Israeli television, Al Hurra, and Al Arabiya, featuring several gem-quality Bushisms:

“I can press when there needs to be pressed; I can hold hands when there needs to be — hold hands. [...]

And what ends up happening in this process is that the leaders will commit, and then they’ll get their committees to work, and it gets stuck. And that’s when I’ll have to work with Condi Rice to unstick it.

Ahem. Does Laura know about this? Does she help? WIIIAI: “I’d put a joke in here, but each version of “Like the time I got my () stuck in ()” I come up with is more disturbing than the one before.”

# The Republican debates according to a 9-year old (DailyKos diarist 8ackgr0und N015e) — This guy gave his 9 year old the job of following the GOP debate on Saturday: “Follow me below the fold for the 9-year old’s rendition of a fight between Sarge, Wrinkles, Bunny Ears, Oily, Beagle Eyes and Carrot Face…” From the resulting transcript:

They are rude
Interrupt alot!

Beagle Eyes
Arrogant foreign policy
We need 400,000 troops
Don’t let politicians get involved
Leave it to military with blood on their boots. [...]

Sarge
John Micane never supported amnesty
Charge $5,000 to stay
attack ads

Wrinkles
Immigrants should not be rewarded

Fight.Fight. Interrupt. Fight

Oily
Do not sent 12,000,000
Ronald Reagan on some commercial. [...]

Sarge
Obama doesn’t have the background to lead.

No candidate likes Obama.
Republicans don’t think he’ll be a good president.
Obama gonna win.

To his great credit, Senator Cardin announced his opposition to the Mukasey nomination earlier this afternoon. In the nub of what commenter Brett rightly calls a fine speech, Senator Cardin rehearsed Mukasey’s written answers to Cardin’s handful of written questions: that he would prosecute individuals who have committed acts of torture, that the Department of Justice has an obligation to prosecute such acts, that no “exceptional circumstances” exist justifying torture, and that he, Mukasey, would never authorize torture.

The question, of course, was what Mukasey is willing to define as torture — and what he’s willing to commit to before Congress about that. Cardin continued:

I therefore have great difficulty understanding Judge Mukasey’s refusal to say that waterboarding is torture, and to leave open the possibility that waterboarding would be permitted as an interrogation technique. Judge Mukasey now acknowledges that he understands what is generally meant by waterboarding, after he stated he was not familiar with this technique during his confirmation hearing.

The questions asked to Judge Mukasey during his confirmation hearing, and in subsequent written questions from the Committee, do not ask about a specific technique that may have been authorized by the President for use on detainees. Our questions to Judge Mukasey related to waterboarding as generally understood. It was not a hypothetical question. The United States has prosecuted Japanese soldiers for using waterboarding during World War II. In 2006, the Army released an updated version of the Field Manual that prohibits the use of waterboarding by our soldiers. The military acted after the passage of the McCain amendment in 2005, which, first, requires Department of Defense personnel to use the Army Field Manual guidelines when interrogating detainees. Second, the McCain amendment prohibits the use of “cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government.”

During our final panel of witnesses at the confirmation hearing, I asked Admiral John Hutson about this matter. Admiral Hutson is a distinguished and highly decorated military lawyer, and in his capacity as the former Navy Judge Advocate General was the senior uniformed legal advisor to the Secretary of the Navy and the Chief of Naval Operations. Admiral Hutson testified, in sum, that the Attorney General as our chief law enforcement officer has to be absolutely unequivocal as to what is torture and what is not. We should not even be close to the line of what is torture. Admiral Hutson testified that waterboarding is one of the most iconic examples of torture, and it was devised during the Spanish Inquisition. Its use has been repudiated for centuries.

So it appeared to me, Mr. President, that Judge Mukasey was yielding to White House pressure on the issue of waterboarding. This is troubling to me because of the critical importance of the independence of the Attorney General.

On November 1, 2007, President Bush implied that if Judge Mukasey answered the question on waterboarding he would give “terrorists a window into which techniques we may use, and which ones we may not use.”

I want the Attorney General and the President to tell the world that the United States will not permit the use of torture. I am concerned that after signing the McCain amendment into law the President issued a signing statement saying his administration would interpret the new law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief, and consistent with the constitutional limitations on the judicial power.” This vague language may mean that the Administration is still claiming the right to torture detainees. I was saddened to read the October 2007 New York Times report that the Justice Department had issued classified legal opinions in 2005 which have not been rescinded and which continue to authorize the use of waterboarding against detainees. [...]

I am privileged to serve as the Senate Co-Chairman of the U.S. Helsinki Commission and as a U.S. delegate to the Organization for Security and Cooperation in Europe (OSCE). [...] Sadly, I find that I spend most of my time in the OSCE today trying to defend the United States against international criticism. The leadership of the United States is being questioned and challenged, and I cannot find the right answer to give my colleagues, particularly on the issue of torture.

Judge Mukasey is a good person and an honorable man. However, on the critical issue of standing up to this Administration as an independent advisor against the use of torture, I have my doubts.

For that reason, Mr. President, I will vote against his confirmation tomorrow morning in the Judiciary Committee.

I note without great surprise that Senator Cardin elected not to follow my sage advice and widen the scope of the case against Mukasey to his notion of voter fraud as a problem commensurate with vote suppression. Cardin may be right to claim that Mukasey would “bring a refreshing change to the Department of Justice,” and would “begin to restore the morale at the Department, along with the respect for professional career attorneys.” But unless the next Attorney General brings a fundamentally different set of priorities to civil rights enforcement — and an independence he refused to show regarding torture — the change will be illusory and the restoration of morale will be short-lived. Mukasey’s defeat would be no major setback for civil rights enforcement if he was planning to continue the voter fraud wild goose chase.

I also note (with with somewhat greater surprise) that the Senator also elected not to stress his own excellent written question regarding prosecuting conspiracies to commit torture — a question that should be sending shivers down John Yoo and David Addington’s backs, to name some of the littler fish the charge could apply to.

But those are quibbles, as is my wish that he’d said this sooner. I set against those quibbles the very great goods of Senator Cardin calling out the President on his signing statement gutting the meaning of the McCain amendment; Senator Cardin decrying the newly revealed “torture v.2.0″ OLC documents; Senator Cardin candidly describing to his fellow senators the loss of reputation he knows our country has suffered for Bush, Cheney, Addington, Yoo et al’s addictions to the abuse of power; and above all his enunciation of the Cardin Rule: “we should not even be close to the line of what is torture.”

In a dark time, Cardin’s speech today was a moment Maryland progressives and Democrats can be proud of. Thank you, Senator Cardin.

Senator Ben Cardin (D-MD) has remained silent through the weekend on how he’ll vote on Michael Mukasey for Attorney General.

By now it may hardly matter. Hopes that the Bush administration’s latest apologist for unfettered presidential power would be defeated in the Judiciary Committee were probably extinguished when Senator Arlen Specter (R-PA) confirmed he’d vote for Mukasey. The resulting unanimous GOP “yes” vote, combined with Senator Feinstein’s (D-CA) and Schumer’s (D-NY) support, means that Mukasey will probably at least eke out a narrow win in the committee.

It’s a shame, because Senator Cardin had a chance not just to join the fight for a renewed constitutional republic, but to lead it. Had he come out with a “no” signal ahead of Feinstein and Schumer, the pressure might have increased on those two Senators to delay and reconsider their vote — especially if Cardin had forcefully raised new concerns about Mukasey — concerns that speak directly to millions of American minority voters. To see why, watch the video of Cardin’s October 17 and 18 exchanges with Mukasey on voter ID and vote suppression:

This comes via the redoubtable Bradblog, where a transcript of both exchanges can be found. The key exchange came early on, after Cardin had briefly recapped a Georgia photo voter ID law purporting to solve a problem of fraudulent voting. The cost and effort to get the IDs made the law “the modern equivalent of the poll tax” by a judge who struck it down. Cardin reminded Mukasey that the law had been vetted and approved by the Gonzales Justice Department’s politicized Civil Rights Division, and then asked where Mukasey’s priorities would lie:

[SENATOR BEN CARDIN]…So I guess my question to you is, will your priority, in your instructions to the Civil Rights Division, be the traditional role of the Dept. of Justice in trying to remove obstacles to particularly minorities being able to vote, or will it be more to try to do the Georgia-type of Voter ID laws?

JUDGE MICHAEL MUKASEY: Respectfully, I don’t think it’s an either/or proposition. I think that voter enfranchisement, voter empowerment, opening up the vote, opening up access to the vote, and preventing people who shouldn’t vote from voting, are essentially two sides of the same coin.

But as Senator Cardin had already pointed out, “the Secretary of State of Georgia could give us no examples of people using false identification or false persons to vote.” As Senator Kennedy wrote in followup questions*submitted in writing, “In the past 5 years… there have been only 86 convictions [of voter fraud] nationwide — mostly involving poor, immigrant, or minority voters who had no intention of violating the law, but didn’t know that they were not legally allowed to register to vote.”

By contrast, vote suppression is common and intentional — as Senator Cardin has reason to know: his opponent last year, Michael Steele, not only hired Philadelphia homeless people to distribute fake “voter ballots” falsely claiming he’d been endorsed by local African-American Democratic politicians, but acknowledged the effort to defraud voters after the election and “just had to laugh at” criticism of the tactic.

So while they’re theoretically “two sides of the same coin,” vote suppression is real, while systematic, intentional vote fraud is essentially imaginary. As Brad Friedman notes, Judge Mukasey was quick to agree that overt trickery (publicizing the wrong election date, threatening arrests for outstanding tickets, and the like) is criminal. But Mukasey was much less enthusiastic about condemning legislative vote suppression such as the Georgia photo voter ID bill — even though that’s part of the job description of the Civil Rights Division he hopes to oversee. The judge went so far as to criticize the “modern day poll tax” statement as “a little over the top.”

More troublingly, in written answers to Senator Kennedy, Mukasey was unwilling to take the Justice Department approval of the Georgia law as evidence of a problem in the department:

ANSWER: I completely agree that the Department’s priorities should focus on the most prevalent and significant voting problems. At this time, however, I do not have sufficient information to determine whether the Department’s priorities comport with that approach, although I assume that they do.

Recapping, Mukasey assumes all is well at the Civil Rights Division’s priorities, even though they approved a blatantly discriminatory and vote suppressive law.

Senator Cardin appeared to be pleased with the answers Mukasey gave him regarding civil rights and voting law enforcement, doubtless valuing the respectful manner in which Mukasey delivered those answers. John Nichols, writing for The Nation, considers Mukasey worse than Gonzales, in part because he’s smoother:

Mukasey gives every indication that he is as enthusiastic as was Gonzales about helping the president to bend and break they law. The scary thing is that Mukasey appears to be a good deal abler when it comes to cloaking lawlessness in a veneer of legal uncertainty.

As Brad Friedman writes, Cardin “would be well advised to re-review the text transcript very carefully.” Both Mukasey’s testimony and his written answers reveal a willingness to dilute and subvert the Civil Rights Division’s true intent — enabling minorities to vote — with a fraudulent wild goose chase after vote fraud. As Senator Kennedy points out in his questions, that’s potentially unconstitutional and unlawful behavior by the Civil Rights Division itself. And as Kennedy’s subsequent questions indicate, that in turn is the basis of the “AttorneyGate” scandal that led to Mukasey’s nomination in the first place.

In his answers to Senators questions, Mukasey goes on to assert he agrees that the Civil Rights Division’s priorities must “reflect the most prevalent and significant voting problems.” But his oral testimony and his written testimony indicate Mukasey has a precarious, if not to say suspect, grasp of which voting problems are significant, and which are not. In a way, this is similar to Mukasey’s flights into high theory and casuistry about waterboarding. Things are sometimes as simple, as wrong, and as illegal as they look — and that’s something Mukasey seems loath to admit.

Were Senator Cardin to sound the alarm on voting rights law enforcement, and justify his “no” vote on this basis, Mukasey’s still-wobbly prospects still might get the coup de grace they deserve. For one, the claims by Schumer and others that “torture alone” is driving the debate would be (again) rebutted; for another, the legacy of the civil rights movement is (still) one of the most widely cherished ones in American life. While the Judiciary Committee vote seems a foregone conclusion now, the Senate vote need not be.

Senator Cardin has a huge opportunity both to make his mark in the Senate, and to serve his country. I hope he takes it.

=====
* The excerpted questions by Senator Kennedy are on page 39 and 40 of his 64 page section (48 and 49 of the overall 172 page .PDF document).
NOTES: “struck it down,” “vetted and approved,” “just had to laugh at” lead to posts on this blog about those events, with links to regular news media articles.

I strongly second this conclusion by Scott Horton (Harper’s Magazine):

If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.

(Emphasis added. Via Marty Lederman at Balkinization.) My own Senator on the Judiciary Committee, Ben Cardin, has not yet said how he’ll vote on the Mukasey nomination; maybe he’s waiting to see what Senator Leahy says this afternoon. At any rate, I’m calling him to urge him to vote “no” — as I did on Tuesday at Heather Mizeur’s fundraiser, where I learned he’d already seen the New York Times op-ed by Yale Law School’s Jed Rubenfeld, which closed:

If Judge Mukasey cannot say plainly that the president must obey a valid statute, he ought not to be the nation’s next attorney general.

Despiting only posing a few written questions to Mukasey, one of Cardin’s was particularly interesting to me:

2. As Attorney General, will you order the Justice Department to prosecute of [sic] individuals who have participated in conspiracy to commit torture?

Mukasey’s answer was typical of his other answers: superficially comforting, but actually just promising more of the same, shall we say, tortured parsing that has nearly derailed his nomination:

ANSWER: As I noted, the Department of Justice has an obligation to enforce all valid criminal statutes, and the conspiracy to commit torture would certainly be a crime under federal law. With respect to particular prosecutions, I would consider them on a case-by-case basis and examine the facts and applicable law in each situation.

More on this particular issue another time. Mukasey is probably a decent guy, but he has not been able or willing to distance himself from this administration, adopting their situational ethics view of torture to study issues that require no further study. The Senate Judiciary Committee has the opportunity to repudiate this administration’s repugnant policies and its unconstitutional view of its powers. The committee should do its duty and take that opportunity by refusing to confirm Mukasey for Attorney General.

=====
UPDATE, 11/2: Possibly on the heels of Senator Leahy’s “no” announcement, I just got an e-mail from MoveOn asking me to contact Senator Cardin and tell him to vote “no” on Mukasey. It’s possibly a nationwide campaign, or at least to states with Senators on the Judiciary Committee, but there’s no web page to go by (yet?), other than a form to record your call. Please do so; I’m big enough to share the credit with MoveOn. Via the e-mail, Alliance for Justice (AfJ) has released a concise critique of Mukasey’s answers to Senators’ written questions.

UPDATE 2, 11/2: Mentioned in the AfJ piece, but not commented on per se, was this:“[A]s a general matter, different legal standards would apply to protect American soldiers than would be available to members of al Qaeda.” The question had to do with the Army Field Manual’s reciprocity rule of thumb test — if al Qaeda did such things to American soldiers, would it be considered abuse? Mukasey’s written answer notwithstanding, as a matter decided by the Supreme Court, “enemy combatants” — including suspected al Qaeda members — are entitled to Geneva Conventions protections. To be fair, this is a point Mukasey makes himself in other written answers — which still invites concern about why he would raise the “different legal standards” idea at all.