Bingaman Makes Strong Case Against Mukasey Appointment

Sen. Jeff Bingaman (D-NM) voted last week against the appointment of Michael Mukasey as Attorney General. Unfortunately, six Dems voted for Mukasey's appointment, including Sen. Chuck Schumer and Sen. Diane Feinstein, who permitted the appointment to gain passage in the Senate Judiciary Committee. His nomination passed the Senate by a margin of 53-40. See the New York Times editorial, "Abdicate and Capitulate," which asks why the nomination didn't need "60 votes" to pass. After all, Senate Dems are always using that magic number for an excuse for not taking action. Filibuster anybody?

If you really want to make yourself sick, read Greg Sargent's piece on that explains why Senate Majority Leader Harry Reid made a deal to allow the Mukasey appointment. Hint: It has everything to do with politics and nothing to do with ethical action.

The good news is that Sen. Bingaman made a blunt yet eloquent floor statement against Mukasey's appointment, saying he was troubled by the Judge's unwillingness to be clear on torture, but also by his refusal to agree that the President must comply with constitutional laws passed by Congress. Sen. Bingaman also compared some of Bush's executive power assertions -- defended by Mukasey -- to the similarly dangerous claims of being beyond the law made by Richard Nixon:

Floor Statement of Sen. Jeff Binaman (D-NM) on Nomination of Judge Michael Mukasey

Mr. BINGAMAN. Mr. President, I rise today to speak about the nomination of Michael Mukasey to be the next United States Attorney General.

First, let me say that by all accounts Judge Mukasey is a good man with a long distinguished record. In his testimony before the Senate Judiciary Committee, he made clear that he understands the need to restore the public's trust and confidence in the Department of Justice. I also believe he demonstrated a willingness to take the necessary steps to de-politicize the Department, and to provide the leadership required to repair its credibility.

However, I am also deeply troubled by the positions Judge Mukasey has taken regarding several important issues. Much has been said about Judge Mukasey's unwillingness to clearly state that certain interrogation techniques, such as waterboarding, are unlawful and amount to torture. I share this concern, but I would also like to highlight another area that I find particularly disturbing; that is the idea that the President doesn't have to comply with a constitutional law passed by Congress.

Over the last 6 years, the Bush administration has put forth a view of Executive power that is incredibly expansive, and in my opinion, an unjustified and dangerous threat to our fundamental rights and our commitment to the rule of law.

The President has asserted the right to unilaterally imprison whomever he wants without judicial review, whether or not they are a United States citizen, if he determines that they are a so-called “enemy combatant.'' The administration has taken the position that the President can authorize the use of techniques that amount to torture, and then immunize any person acting pursuant to his orders from criminal liability. The President also authorized warrantless surveillance in direct contravention to the Foreign Intelligence Surveillance Act.

In all of these instances, the President justified his actions on the basis that he was acting within his authority as commander-in-chief to defend the country, and that neither Congress nor the courts can infringe on this power. While many of these assertions have ultimately been rejected by Federal courts, Congress, or overturned internally when they became public, the President continues to assert that there are few restraints on his power when it comes to national security matters.

During his confirmation hearing, Judge Mukasey stated that he would step down if he determined that the President's actions were unlawful and the President refused to heed his advice to change course. Although this does signal a welcomed degree of independence, I remain concerned about what Judge Mukasey will find to be "lawful.''

Let me read an exchange that took place during a hearing in the Senate Judiciary Committee which illustrates this point.

Senator Leahy: . . . where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations . . . if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?

Judge Mukasey: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

Senator Leahy: Can the President put someone above the law by authorizing illegal conduct?

Judge Mukasey: If by illegal you mean contrary to a statute but within the authority of the President to defend the country, the President is not putting somebody above the law, the President is putting somebody within the law.

While this view may be consistent with the current administration's position regarding Executive authority, this stance is not consistent with how the powers of the president have traditionally been interpreted. The notion that the president may disregard a valid law by citing his inherent power to defend the country is disconcerting.

And frankly, it is all too reminiscent of President Nixon's assertion that actions taken in the name of national security, whether or not they are in accordance with relevant statues, are by definition legal if they are carried out on behalf of the President. This assertion was widely rejected, as it should have been.

As our Nation's highest law enforcement officer, it is essential that the Attorney General faithfully execute laws passed by Congress. It is one thing for the Attorney General to state that he or she will not enforce a certain measure because it is unconstitutional; however, it is a very different matter if the Executive Branch asserts that it is not bound by a law that is clearly constitutional.

It is for this reason that I cannot support the nomination of Judge Mukasey to be the next Attorney General.
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If you'd like to send Sen. Bingaman a message supporting his action on the Mukasey nomination, click here.