- The Washington Times - Tuesday, October 23, 2007

President Bush has his Michael B. Mukasey, attorney general-designate, to defend his multiple challenges to the Constitution, just as King Henry VIII had his Cardinal Wolsey to defend his nullity suit against Katherine of Aragon.

During two days of confirmation hearings last week before the Senate Judiciary Committee, Mr. Mukasey echoed Mr. Bush’s bloated conception of presidential powers. A few senators complained or voiced chagrin, but Mr. Mukasey’s confirmation seems assured. By not leveraging confirmation to insist on an attorney general devoted to the Constitution’s checks and balances, the Senate betrayed effeteness destined to culminate in government by presidential edict.

Mr. Mukasey denounced torture as unconstitutional, but declined to rebuke President Bush’s signing statement issued in conjunction with the Detainee Treatment Act of 2005 claiming inherent constitutional power to torture to gather foreign intelligence. Indeed, Mr. Mukasey expressed no qualms about hundreds of Mr. Bush’s signing statements declaring his intent to disregard provisions of bills he has signed into law that the president believes are unconstitutional.

Signing statements are indistinguishable from absolute line-item vetoes which the United States Supreme Court voided in Clinton v. New York. They result in the enforcement of laws that Congress did not pass. Members vote to approve an entire bill, not an expurgated version prepared by the president.

The attorney general-designate did not quarrel with Mr. Bush’s unprecedented assertions of executive privilege to prevent current or former White House officials from testifying before congressional committees investigating crimes or maladministration. Nor did he quarrel with Mr. Bush’s concealment of spy programs from Congress and hiding their legal justifications.



In contrast to Justice Louis D. Brandeis, Mr. Mukasey did not endorse government in the sunshine as the best disinfectant. He did not subscribe to James Madison’s philosophy that self-government is fatuous unless the people know what their government is doing to adjust their political loyalties accordingly.

Mr. Mukasey has asserted that the government deserves a presumption of trust and honesty despite the notoriety of the executive branch — including the Bush administration — of lying to aggrandize power. President Lyndon B. Johnson lied about North Vietnamese attacks on the USS Mattox and USS Turner Joy to justify the Gulf of Tonkin Resolution. President Bush followed Johnson’s instruction in lying about weapons of mass destruction in Iraq to justify invasion.

Mr. Bush has logarithmically inflated the danger of international terrorism and a caliphate in the United States to a combination of Josef Stalin, V.I. Lenin, Leon Trotsky, Adolf Hitler, Hirohito and Benito Mussolini to justify, among other things, permanent war, indefinite detentions of U.S. citizens as unlawful enemy combatants and the kidnapping, imprisonment and torture of terrorist suspects abroad.

By indirection, the attorney general-designate saluted President Bush’s defiance of the Foreign Intelligence Surveillance Act of 1978 in the aftermath of September 11, 2001, by ordering the National Security Agency to target U.S. citizens on American soil for electronic surveillance without judicial warrants on his say-so alone. Mr. Mukasey elaborated: “As I understand it, the president believed at the time and still believes that FISA was not the only applicable statute; that [in] part of that he was acting with authorization under the authorization for the use of military force [AUMF]. I understand that there is more than one view on that.”

But President Bush belatedly concocted the AUMF theory in 2006 as part of a “dynamic” rather than a “static” process of interpretation. The theory was not present at the creation of the NSA’s warrantless spying. Moreover, the president has claimed constitutional authority to intercept phone conversations and e-mails, break and enter homes, kidnap, and torture American citizens to collect foreign intelligence despite criminal prohibitions enacted by Congress. Mr. Mukasey did not challenge that imperial theory of executive power.

The attorney general-designate supports every dubious premise that President Bush has trumpeted since September 11, 2001, to cripple checks and balances: that the conflict with international terrorism constitutes permanent war in which every square inch of the United States is an active battlefield where military force and military law can be employed at the president’s discretion; that global terrorists must be subject to a special system of military or quasi-military justice that shortchanges procedural protections against government abuses or overreaching; that transparency should be subservient to government secrecy under the twin banners of national security or the confidentiality of presidential advice; and, that congressional oversight is a needless vexation to the executive branch because legislators are motivated by petty and partisan ambitions.

When the Senate confirms Mr. Mukasey, it will have confirmed its own reduction to an inkblot among the Constitution’s checks and balances.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.

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