AG to US: FU

Attorney General Michael Mukasey was on Capitol Hill yesterday, welcoming the House Judiciary Committee—and all of us Americans—to the era of recourse-free government.

In what can’t possibly be over-reported (but, alas, will be noticed by very few—it is not on the front page of the New York Times, for instance, and their short story about the hearing, buried deep inside, only mentions the AG’s face off with Congress over cocaine sentencing guidelines), Mukasey made several startling declarations:

• No, the Justice Department will not be investigating whether the now-admitted-to waterboarding of US prisoners was against the law.
• And, no, the DoJ will not be investigating whether the Bush Administration’s warrantless surveillance was illegal. Nor will the AG appoint a special prosecutor to investigate.
• And, no, the Department of Justice will not enforce any contempt citations that Congress might bring against administration officials that have failed to honor subpoenas for testimony.

“How can that be?” say so many (Democratic) members of the HJC.

“Because we’re just not going to,” says the imperious AG.

“But aren’t you sworn to uphold the law?” the perplexed HJC members ask.

“We are the law,” blurts Mukasey.

No, that’s not an exact verbatim—but you might be shocked to find just how close it is. The transcripts are quite lengthy, so let me borrow Paul Kiel’s quick summary of an exchange with New York Rep. Jerrold Nadler over appointing a special counsel to look at the warrantless wiretaps (you can find the complete transcript below that post):

The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.

Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).

You’ve got your Nuremburg Defense, you’ve got your executive privilege, and you’ve got a bucket-full of L’État c’est moi—and it all adds up to the most arrogant, bald-faced, and shameless defense of the unitary executive “theory” ever uttered by this administration (and, yes, I know, that is saying a lot).

What AG Mukasey is claiming—and what he is establishing unless Congress does something quickly to contradict him—is that there is effectively only one branch of government, and that is the Executive Branch. The AG’s statements do not allow for congressional oversight, and they do not allow for judicial oversight. It does not even allow for the rule of law, since the law is whatever the President instructs his Office of Legal Counsel and Attorney General to say it is. How can we know what he instructed? We can’t—that’s a state secret or subject to executive privilege. What if a member of Congress, or a judge, or any US citizen has a problem with that? Tough luck—you have no effective recourse beyond the whims or benevolence of the President/Emperor.

This doesn’t just trample on the United States Constitution—it abrogates the Magna Carta.

Perhaps it is easy to chalk this up to business as usual for a corrupt administration that is less than a year from out the door, but that would be letting Mukasey and his bosses off easy, and it would be letting the country down. While it is unbelievable that the establishment media won’t cover this power grab, it will be unforgivable if Congress doesn’t correct it.


(cross-posted on The Seminal and Daily Kos)