It's hard to tell who looks more foolish the Democrats, like Senators Clinton, Dodd, and Obama, who pronounced themselves opposed to the confirmation of Michael Mukasey as attorney general of the United States before he sent members of the Judiciary Committee a thoughtful, intelligent, and well-reasoned letter addressing concerns they'd raised about torture. Or the Democrats, like Senators Durbin and Leahy, who expressed doubts about confirming Judge Mukasey's nomination even after receiving the letter. The first group of Democrats wouldn't even go through the motions of giving Judge Mukasey the courtesy of a hearing. And the second group of Democrats seem to reject even a nominee who was intended to be a consensus candidate and who exemplifies the classical principles of legal objectivity.
Judge Mukasey's letter, in its tone and wisdom and concern both for the rule of law and American national security, will be seen by the vast majority of Americans as exemplifying the qualities and values America desperately needs in its top public servants, particularly in a time of war. To the senators who expressed concern about his answer or non-answer to a question at a confirmation hearing, the judge wrote a reply of four densely packed, carefully researched pages attempting to address their concerns about the practice of "waterboarding" that some say is used during interrogation of hardened Al Qaeda terrorists. Judge Mukasey wrote, "I well understand the concerns of the Senators who signed this letter that this Country remains true to its ideals, and that includes how we treat even the most brutal terrorists in U.S. custody. I understand also the importance of the United States remaining a nation of laws and setting a high standard of respect for human rights. Indeed, I said at the hearing that torture violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official."
The judge wrote that while some members of Congress on the intelligence committees may have been briefed on CIA interrogation techniques, he has not been. "A legal opinion on whether any interrogation technique shocks the conscience such that it constitutes cruel, inhuman, or degrading treatment requires an understanding of the relevant facts and circumstances of the technique's past or proposed use," he wrote. He also made another point, explaining his reluctance to go into detail in condemning waterboarding. "I would not want any statement of mine to provide our enemies with a window into the limits or contours of any interrogation program we may have in place and thereby assist them in training to resist the techniques we actually may use." These words don't condone torture. They are sage and mature. They will be applauded by those who place national security over political ambition.
The Mukasey letter concludes by telling the senators, in effect, that if the price of his confirmation is going to be telling the senators exactly what they want to hear at the expense of the judge's best legal and practical judgment, the senators can find themselves another attorney general. "Some of you told me at the hearing or in private meetings that you hoped and expected that, if confirmed, I would exercise my independent judgment when providing advice to the President, regardless of whether that advice was what the President wanted to hear. I told you that it would be irresponsible of me to do anything less," he wrote. "It would be no less irresponsible of me to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances."
Judge Mukasey's display of mettle, we don't mind saying, made us proud to have been, back on September 7, the first newspaper to endorse him for attorney general. His qualifications, we noted at the time, were one thing on which we agreed with Senator Schumer. And we were proud of him, too, for offering, in Mr. Mukasey, a candidate around whom Mr. Bush and the Senate Democrats could find a consensus. All eyes will be on Mr. Schumer now, as his colleagues, even his junior colleague from New York, Mrs. Clinton, desert the man he suggested for the job. The Associated Press was reporting last night that Mr. Schumer wasn't immediately commenting. It's an important moment for Mr. Schumer and the Democrats, not to mention the rest of us. We'd like to think that Mr. Schumer will be able to turn this around before one of the finest public servants ever handed up by New York is rejected at a time when his leadership his mettle is greatly needed.