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We’ve Seen This Before

Kagro X has a post focusing, again, on Michael Mukasey’s evasions about the Constitution. Kagro focuses not on Mukasey’s confusion about whether water-boarding is torture, but whether the President can ignore existing laws.

Any president — and I mean any president — ought to beable to depend on a certain amount of deference from his or herAttorney General, of course. This ordinarily goes without saying, butin this case must be said because it sets up an irreconcilable paradox.Is it even possible to serve an administration that regularly assertsconstitutional interpretations like the one Judge Mukasey did andprotect the fundamental rule of law which underlies our entireconstitutional system of government? How could it be so?


An "administration" that sends distinguished federal judges toCapitol Hill and puts them in a position requiring them to hedge onanswers to such basic questions as must a president obey federalstatutes is operating so far outside the bounds of normalcy already,that it hardly seems worth anyone’s time to pretend that an AttorneyGeneral is necessary to the functioning of the government at all.

I’d like to reinforce Kagro’s point by pointing to the consistency, across time and nominees, of the Administration’s AG candidates on this Constitutional question. Here’s the complete context of the Mukasey comment that Kagro is focused on.

LEAHY: And,lastly, where Congress has clearly legislated in an area, as we’ve donein the area of surveillance with the FISA law, something we’ve amendedrepeatedly at the request of various administrations, if somebody — ifit’s been legislated and stated very clearly what must be done, if youoperate outside of that, whether it’s with a presidential authorizationor anything else, wouldn’t that be illegal? 

MUKASEY: Thatwould have to depend on whether what goes outside the statutenonetheless lies within the authority of the president to defend thecountry.

LEAHY: Where does the president get that authority? Ithinking of the Jackson opinion and others. Where does he get theauthority if it’s clearly enunciated what he can do, law that hesigned, very clearly enunciated? I mean, the president say, Thisauthority, I’m going to order the FBI to go in and raid 25 housesbecause somebody told me they think someone’s there. We’re not going towait for courts, we’re not going to do anything else. There’s nourgency, but we’d just kind of like to do that.

MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.

AndI recognize that you’ve posited the case that way for a reason. But thestatute, regardless of its clarity, can’t change the Constitution.That’s been true since the Prize cases. And it was true before that.

LEAHY:Can a president authorize illegal conduct? Can the president — can apresident put somebody above the law by authorizing illegal conduct?

MUKASEY:The only way for me to respond to that in the abstract is to say thatif by illegal you mean contrary to a statute, but within the authorityof the president to defend the country, the president is not puttingsomebody above the law; the president is putting somebody within thelaw.

Can the president put somebody above the law? No. The president doesn’t stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]

Leahy is concerned about whether Bush can just decide to operate outside of FISA–or any other law that explicitly limits the behavior of the Executive Branch. But he’s also concerned about whether the Administration can offer immunity for someone who follows the President’s orders in operating outside of statute.

This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales–back before we knew the extent of Gonzales’ craven willingness to put law aside for politics. The topic is different–Leahy is asking about torture, not wiretapping. But the response is almost the same.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.