30 January 2008
Mukasey’s Malingery
The statement to Senator Leahy on 29 January 2008 by Attorney General Michael Mukasey explaining his refusal to decide on the legality of using waterboarding in federal investigations defines the difference between an official of the executive branch and a judge on the federal bench. He wrote, “I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.”
Perhaps the request for his opinion on the matter from the Senate Judiciary Committee was clumsily phrased. Although the Solicitor General of the U.S., who is nominally on Mukasey’s staff, would argue questions of legality in courts of law, the FBI is also under Mukasey’s control. That puts the Attorney General in an anomalous position, with responsibility not only for making policy, but also for defending policies as an officer of the federal court.
The Senate Judiciary Committee must be aware of that anomaly, and should have directed Mr. Mukasey to wear only his policy-maker hat when responding to its concern over the administration’s authorization of the use of waterboarding. That might have made it more difficult for the Attorney General to hide behind his other, court-officer hat. Apparently, the habits of Mr. Mukasey’s previous career as a federal judge die hard.
The statement to Senator Leahy on 29 January 2008 by Attorney General Michael Mukasey explaining his refusal to decide on the legality of using waterboarding in federal investigations defines the difference between an official of the executive branch and a judge on the federal bench. He wrote, “I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.”
Perhaps the request for his opinion on the matter from the Senate Judiciary Committee was clumsily phrased. Although the Solicitor General of the U.S., who is nominally on Mukasey’s staff, would argue questions of legality in courts of law, the FBI is also under Mukasey’s control. That puts the Attorney General in an anomalous position, with responsibility not only for making policy, but also for defending policies as an officer of the federal court.
The Senate Judiciary Committee must be aware of that anomaly, and should have directed Mr. Mukasey to wear only his policy-maker hat when responding to its concern over the administration’s authorization of the use of waterboarding. That might have made it more difficult for the Attorney General to hide behind his other, court-officer hat. Apparently, the habits of Mr. Mukasey’s previous career as a federal judge die hard.
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