Friday, February 08, 2008


By William Fisher

The partisan political divide morphed into a chasm again this week as the House of Representatives Judiciary Committee convened to grill Attorney General Michael Mukasey for the first time since his confirmation hearings.

The ostensible objective of the hearing was “oversight.” But one has to wonder what, if anything, our elected representatives learned that everyone didn’t already know.

If there was a big winner in this all-too-familiar tableau, it was the audience, which got to enjoy some of America’s best Kabuki Theater.

The Democrats on the panel, under the velvet-voiced chairmanship of the patrician John Conyers of Michigan, clearly smelled blood in the water. Their menu was a litany of allegedly penetrating questions whose answers were totally predictable.

These covered such issues as whether the AG would open a criminal investigation of the CIA’s use of waterboarding, whether he thought waterboarding constituted torture, whether he would prosecute Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, for failing to show up in response to a congressional contempt citation, whether the telecom companies involved in the FISA controversy should receive retroactive immunity from prosecution for helping the government to snoop on American citizens, whether he thought the CIA destroyed their interrogation tapes simply to protect the spooks from prosecution – and lots more fun subjects.

Our elected representatives put on their most serious faces and asked their questions with just the right combination of gravitas and passion.

The AG, soft-spoken and seemingly unflappable, answered with his own mix of legalese and gravitas – at least a welcome change from the bumbling, confused and disingenuous ramblings of his predecessor, Alberto Gonzales.

But his answers were as predictable as the questions he was answering.

Take, for example, his response to the question of opening a criminal investigation into the CIA’s use of waterboarding.

No, he would not open such an investigation because a memorandum prepared at the time by the Department of Justice’s Office of Legal Counsel concluded that the practice was legal. An investigation would place the DOJ in the position of investigating procedures it had found to be lawful.

What was never asked: If the DOJ found waterboarding “legal at that time,” why was it stricken from the CIA’s menu of “enhanced interrogation” techniques? And if waterboarding become un-legal at some point, why and when?

And, no he would not let congress see the OLC memorandum because (a) it was classified and (b) it was covered by executive privilege.

And yet again, no, he would not prosecute Bolten and Miers because the president has the authority to instruct his senior aides not to comply with congressional subpoenas or contempt citations. It was a “separation of powers” issue, he said.

Mukasey then addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the expiring law, including granting retroactive immunity to the private telecom companies who cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.

The AG said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.” Makes you wonder about Constitutional education of the army of lawyers who work for these telecom giants!

Maybe these corporate law types didn’t know that FISA requires the government to obtain warrants from its own special and highly secretive court before intercepting phone calls or emails involving Americans. That’s odd, because any first-year law student could tell you this requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.

And so it went on. And on. And on.

The Democrats got to ask their headline-hungry questions, looking less for answers than for TV soundbites. Good thing too, because the answers were few and far between.

But, not to be outdone, the Republican members of the Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, had their own agenda: making the Bush Administration look, well, better. Like the Dems, GOP members’ leading questions came mostly in the form of statements.

For example, Rep. Smith asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.”

Mukasey suggested he didn’t know much about the 99 per cent and declined to answer.

Not to worry: the question got asked.

After hours of largely unilluminating ping pong law, the performance mercifully came to an end.

The Democrats got to score their points. The Republicans got to pay their party dues. Whereupon both sides rushed back to their offices to get their press releases out.

And the AG smiled and took his gravitas back to the DOJ.

Mission Accomplished!