Mukasey Has the Capacity to Be a Great Attorney General, But Not the Time

The New Republic, January 31, 2008

Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law. At the committee hearing, he declared the question hypothetical, since the CIA no longer uses the tactic. And he declared as well that all of the tactics the agency does currently use satisfy legal requirements. All of which left Democrats understandably frustrated in their search for answers.

Since the water-boarding debate captured all the headlines about Mukasey’s testimony, you might think the attorney general revealed little about himself. In truth, however, Mukasey’s first oversight hearing brought out a lot about what sort of attorney general he is likely to be. Specifically, the public learned that Mukasey harbors no great ambitions for dramatic policy breakthroughs on the divisive legal questions of our day, apparently preferring to defer these until the next administration. He seems, rather, bent on functioning as a kind of honorable caretaker, a man who can–with quiet, non-adversarial competence–begin repairing the damage wrought by his two predecessors. Mukasey is not going to be an Ed Levi, Gerald Ford’s attorney general, whose brief tenure in the wake of Watergate began the process of rehabilitating American faith in federal law enforcement and intelligence by restraining its excesses. If he’s successful at his more modest task, however, he may enable his successor to be.

Without quite saying as much, Mukasey made clear that he would not be trying anything big in his year in office. In particular, he disclaimed any intent to alter fundamentally the administration’s legal posture in the war on terrorism. Before his nomination to the nation’s top law enforcement job, Mukasey had flirted publicly with the idea that America needed a “national security court” to handle the detention and trial of suspected Al Qaeda operatives. Given his experience as a judge in important terrorism cases–both criminal cases and the military detention of Jose Padilla–some of us had hoped that his appointment as attorney general might lead to a move to regularize in law the longer-term detentions now taking place under the rubric of wartime presidential powers.

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