The Mukasey Hearings: How To Advance By Retreating
Barring any unforseen circumstances, I expect to be in the Rose Garden of the White House (or the East Room, depending on the weather) around this time next week as Michael Mukasey is sworn in as the 81st Attorney General of the United States.
After two days of hearings, the former Federal judge and assistant U.S. Attorney has essentially won over Senate Judiciary Committee Chairman Patrick Leahy (D.-VT) and his Democratic colleagues on the panel by telling them what they want to hear. In short, Mukasey has advanced by retreating.
He repudiated the controversial memo by then-Assistant Attorney General Jay Bybee that gave a strained – and since repudiated – interpretation of the US law against torture. The Bybee memo gave a reading of US law under which the President could authorize harsh questioning techniques that were not permitted under the UN Convention Against Torture. The "Bybee memo" has long been controversial and was part of the justification for the so-called “McCain Amendment” to the US law prohibiting torture. In his own confirmation hearings as attorney general in ’05, Alberto Gonzales refused to repudiate the Bybee memo–a reason several Democratic senators cited in voting against his confirmation
Michael Mukasey did the requisite repudiating, quoting a French axiom that the Bybee memo was "worse than a sin–it was a mistake."
In the process, he might well have removed the "gray area" for justifying techniques that could be considerred harsh in the interrogation process.
At the President’s White House news conference today, I heard my colleague Richard Wolfe of Newsweek ask Mr. Bush his definition of torture. Bush said he knew what torture was and added what I have heard former Press Secretary Tony Snow and successor Dana Perino say many times: "We don’t torture."
Perino, Snow, and the President himself have long been protected by the fact that the US never says precisely what it does in the interrogation process for fear that terrorists will then know how to train their agents what to resist. The question is whether the new AG-to-be has given up flexibility that US law and international law allow.
Forewarned is forearmed: Mukasey’s words on this controversial subject will be thrown back at the President and his spokesmen in coming news conferences and briefings.
Mukasey also gave his blessings to the argument Leahy and Company have been making that there is something foul-smelling about the firing of seven Bush-named U.S. Attorneys–the issue that has left vacant the top seven positions at the Justice Department under the attorney general.
The nominee to run the 100,000-member Justice Department said he would ban his office from making calls "to political figures to talk about cases." He didn’t spell out anything, name names, or say, yes, something has to change in the way U.S. Attorneys are named. But he did distance himself from Gonzales and appeared to be almost winking at Democrats, as if to say: "Yeah, they screwed up before and we won’t do it when we start filling the vacant U.S. Attorney slots."
It has been said that attorneys general named at this stage of any Administration are not only at the end of the Administration but at the end of their own careers. Judge Mukasey is retired from the bench, and, at 68, unlikely to achieve the position that he was once ballyhooed for by Sen. Chuck Schumer (D.-NY)–justice of the Supreme Court.
But he almost surely will become attorney general. The question now is just how much did he concede in the testimony that will probably get him the post? And will those concessions restrict intelligence gatherers more than the law requires?
Prince William County Takes Next Step On Illegal
When Prince William County (VA.) Supervisor John Stirrup got home last night following a marathon, twelve-hour session of the county board on tougher measures on illegal immigration, his wife Heidi and daughter Sarah had long gone to bed. "The only one up when I got home was the dog, and he looked at me as if to say ‘What are you doing up at this hour?’, quipped a bleary-eyed Stirrup when I spoke to him this afternoon.
It was something of a miracle that Stirrup was up and available for an interview. In what is beginning to be par for the course in the Northern Virginia county as it wrestles with its mounting crisis of illegal aliens absorbing county services, more than 350 speakers packed the county meeting, which ran from 2 PM to 2 AM yesterday. Incendiary rhetoric flew like shrapnel, as the eight-member County Board of Supervisors debated the next step to take after its vote over the summer empowering police to ask residents if they were in the US illegally or not (and, if not, to arrest them and turn them over to federal immigration authorities for deportation).
In the end, the county fathers voted eight-to-nothing to recommend restrictions on services that would be available to illegal immigrants and to create a new police unit to deal exclusively with the alien crisis. As was the earlier measure, these latest steps were the work of Supervisor Stirrup.
"We could have done more," Stirrup told me today, noting that he and his colleagues "pared down significantly" the list of services to which they considered barring illegal immigrants from accessing. In the end, eight such services, ranging from rental and mortgage assistance to a substance prevention program in the county jail, were denied illegal immigrants. In Stirrup’s words, "It’s a good start, and another step" after the "first strike" the county took last summer.
Amid cries of "racist" and "xenophobe" at the meeting last night–not to mention a new lawsuit against the county filed by the Puerto Rican Legal Defense Fund–Stirrup and his colleagues (six Republicans, two Democrats) also voted to create the new Criminal Alien Unit within the county police. According to Stirrup, the CAU — inspired, the superviser added, by County Police Chief Charlie Deane — will have seven new officers and a budget of $975,000 for the balance of the fiscal year.
The officers in the CAU will be "trained to enforce immigration laws" and work with the 287-G federal partnership (in which local law enforcement officials are trained to enforce federal immigration laws), Stirrup said.
Both Stirrup and County Board Chairman Cory Stewart have long made the point to us that the rising crime rate in their county is directly related to the flood of illegal immigrants, that 21% of the detainees in the county jail are illegal immigrants. As Stirrup said, "The exact number is 720, and another 720 have been farmed out to other prisons. 56 illegal immigrants have been sent [back to federal authorities] for deportation."
The invective and resultant national publicity notwithstanding, are the tough new measures stemming the tide of illegal immigrants into the second-largest Northern Virginia county? In John Stirrup’s words, "It’s already starting to work."