Testifying on Wednesday before the Senate Judiciary Committee, Attorney General Michael Mukasey refused to admit that the president had broken the law when he ordered the surveillance of domestic calls without a warrant. In an emergency, Mukasey seemed to be saying, all authority is absorbed into executive authority. It followed, and Mukasey intimated as much, that the president could have been acting legally, too, when he authorized the drowning torture: a war crime under the Geneva Conventions, and under the treaty obligations of the United States. Aiming to reassure the committee, Mukasey said that he could not imagine any expansion of executive power this president might demand that would not fall within the law.
When Michael Mukasey was nominated as attorney general, the legal community vouched for him. A conscientious and professional legal mind, they said, far more scrupulous than Alberto Gonzales. This impression was widely conveyed, but it has turned out to be false. How did that happen? The impression was based on Mukasey's conduct before 2001.
Michael Mukasey is one of those Americans like Dick Cheney, Rudolph Giuliani, John Yoo, and George W. Bush, for whom the moral world turned upside down on September 11, 2001. These men quickly came to believe that all our previous understanding of good and bad, legal and illegal, honorable and dishonorable, right and wrong, ended on that day. Every maxim and principle regarding the treatment of strangers or citizens was now questionable. The vice president's frank confession of his need to "work the dark side" was a plain statement of the intuition. So, many things Americans had considered wicked were now to be countenanced, redefined, and certified as legal, provided we Americans were the ones who did them.
Mukasey's turn might have been guessed from his connection with the Giuliani campaign and his admiration for Joseph Lieberman. A stronger clue appeared in a New York Times story by Philip Shenon, which ran on September 24, 2007 and was too little noticed at the time. The story gave some details of Judge Mukasey's treatment of the rights of an Arab detainee in October 2001.
The detainee, a Jordanian, Osama Awadallah, had been picked up as a possible witness in a terrorism investigation, and said he had been beaten in jail. Judge Mukasey responded "He looks fine to me," and ordered the man detained indefinitely. A prison medical official later found bruises on his body consistent with the statement that he was beaten.
Randy Hamud represented Awadallah in the courtroom, in that hearing in October 2001, and he was taken aback by the "injudicious" conduct of Judge Mukasey. Why injudicious? Awadallah and the other witnesses had been picked up in San Diego and rushed to New York without a chance to consult a lawyer. "I wasn't aware that they were in New York until approximately 8:30 yesterday evening," Hamud says in the court transcript.
"You are now aware of it," says Mukasey.
The defense lawyer asks why the prosecutors have been allowed to prevent him from talking with his client.
"Your question is ridiculous," says Mukasey. "The Government isn't interfering with the attorney-client privilege."
Hamud: "It is, your honor."
Mukasey: "Oh, please."
If the reply, "You are now aware of it," was mocking, "Oh, please" takes us beyond mockery to contempt. In any social context, the phrase is a play to the gallery. It goes with rolling of the eyes. You are sharing your dismissal with an audience of those who see at once the absurdity of the question. But in Judge Mukasey's courtroom, who exactly were the audience?
The answer can't be simply the government lawyers (though, by his breach of decorum, Mukasey was reassuring them that no legal compunction would stop him from assisting their cause). No: the audience existed in Judge Mukasey's mind.
It was constituted of all the Americans who matter. All real Americans, he was telling a lawyer named Hamud who represented a client named Awadallah -- all of us here recognize that the moment has come for rough handling of Arab detainees and suspects. And if the law doesn't help us to handle them, we will find new ways of handling the law.
Oh, please. In other words: Give me a break. Do you want me to draw you a diagram? What you call the law, the law you learned in school -- can't you see this isn't the law we're using any more? Everyone knows that everything has changed.
On Wednesday, Senator Kennedy asked the attorney general about the drowning torture, and, recalling his earlier refusal to call it torture, imagined aloud the series of sophistical evasions he would get if he waited for an answer.
Just as the attack was turning predictable, Kennedy looked up at Mukasey. "Let me ask you this, would waterboarding be torture if it was done to you?" Here, perhaps, not the question but the timing caught Mukasey off guard, and he replied in a shaken tone: "I would feel that it was."
He would feel that it was torture. But that would not make it torture. Because, when we go after these suspects, we are dealing with matters of great moment, beyond the concern of moral feelings. What I feel, Senator, and what you feel has nothing to do with our right to shut up a suspect and give him the works until he confesses. How I feel and how you feel has nothing to do with it. And what the law plainly says -- that, too, has nothing to do with it.
Everything changed, they say, on 9/11. Politics, morality, laws (even if the laws on the books are mostly unchanged), who we are, and what we may permit ourselves -- none of the rules apply any more. To prove himself a believer, Mukasey has gone some way to destroy his own reputation as a defender of the laws. Yet a man of his stature does not cease to care about the quality of his reputation. So when he indicates, as he did on Wednesday, that his function is to provide a cover for the president's assertions of executive power, he is saying that he expects to be judged by a posterity that will resemble John Yoo more than it resembles Robert H. Jackson.
The belief that the ethic of force will last forever is a presumption of the totalitarian mind. It says: none of the lights of the old morality can guide us through our latest plans. It says: our dangers are unprecedented, and so are the methods we must employ. This cry is heard on many sides, in America, while the world looks on dismayed, because they have never seen us like this before, and they can trace no proportion between the cause and the effects.
In an essay written in 1939, on the cold war between the superpowers of Russia and Germany, Simone Weil made these observations:
"Politically speaking, it is the essential characteristic of totalitarian regimes that they prolong, year after year, a situation which is only natural in a state of general excitement. Every people is liable occasionally to what we may call totalitarian moments. At such moments there are unanimous and cheering crowds and even the passive elements of the population, including those who were formerly hostile to what is being acclaimed, feel a vague admiration and sense of satisfaction....Totalitarian regimes commence more or less in this kind of atmosphere, and that is why their tyrannical character is recognized more quickly by foreigners than by their own subjects. Then, as the years go by, everything is expected to continue, day by day throughout the whole country, on the assumption that the state of excitement is permanent. The real stumbling-block of totalitarian regimes is not the spiritual need of men for freedom of thought; it is men's inability to stand the physical and nervous strain of a permanent state of excitement....Enthusiasm is a machine that wears out, and then a man begins to be aware of coercion; and the sense of being coerced is enough to produce in his mind that combination of docility and rancor which is typical of slaves."
Several senators on the judiciary committee spoke of their "disappointment" at Mukasey's answers -- a word they had used in 2007 regarding Alberto Gonzales. But without a will to support their feelings of annoyance or betrayal, without any intention to issue a threat backed by a sanction, their disappointment has been reduced to a gesture: the docility and rancor of slaves.