No Comment — January 31, 2008, 12:22 am

‘Reasonable Minds Can Differ’

In the view of Carl Schmitt and other critics of traditional liberalism on the European hard right (though later picked up and echoed by some in the critical studies movement on the American left), the liberal system produced hopeless legal indeterminacy. Who could say what the law was? Reasonable minds could differ, and so could reasonable judges. The liberal approach encouraged tolerance, flexibility, openness, but all of this served to strip it of its fundamental purpose, namely supplying rules for decision which would guide merchants in their business dealings, the state as it addressed matters affected by a public interest and individuals pursuing their private dealings. This was hopelessly inefficient. It justified the introduction of a centrally managed legal system with legal authority concentrated in the hands of a single leader with paramount authority. For Schmitt, indeed, the collapse of the Weimar Constitution–the seventy-fifth anniversary of which we mark this week–was due not to the predatory acts of the German fascists as much as the inherent weakness of Weimar’s highly imperfect liberalism—its pedantic judges, unfocused prosecutors and bickering legal counsel.Carl Schmitt, “Das Problem der Legalität” (1950) in: Schmitt, Verfassungrechtliche Aufsätze aus den Jahren 1924-1954: Materialen zu einer Verfassungslehre (1978), pp. 440-451.

That thesis sprang to mind listening to Michael Mukasey testify in the Senate Judiciary Committee today. Time and again he lectured the senators that “reasonable minds could differ about these matters.” As debating style goes, this was the acknowledgement of a position so weak that it was barely intellectually tenable. Steven Bradbury and I are reasonable people, he seemed to say, and we disagree with you. And no, we’re not going to tell you what we think or present the series of legal steps by which we got there. If we did, you’d only embarrass us further. We’ll keep quiet, thank you. Here’s Yale Law Professor Jack Balkin’s summation of the Mukasey testimony:

You’re crazy if you think I’m going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal. Saying that would suggest that people in the Administration violated the law and are subject to criminal prosecution, and that previous OLC opinions have condoned war crimes. The only thing I will tell you is that I sure hope we don’t continue one of these practices in the future (lucky for me you haven’t pressed me about the others!). But don’t ask me to say that the President can’t do any of them later on if he wants to. I mean, come on, guys, I just got here, you know? I just put new drapes in my office. I really don’t want to have to get fired only three months after I started. Oh, and by the way, the President, my boss, never violates the law. Got that?

Writing at Slate, Dahlia Lithwick, very much on target, tells us that the proceedings can be summed up by the mutually effusive expressions of thanks coming from the senators and Mukasey, followed by Mukasey telling them all to “go to hell.”

More and more frequently, we hear members of the Bush administration crying about the evils of “lawfare”—the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You’d think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it’s better to make them up in secret as you go along.

Watching Mukasey was a painful experience. What the public hoped for with his appointment was simple enough: that someone would occupy the office of attorney general who possessed integrity, common sense, independence and the basic skills that accompany a sound legal mind. The essence of what a lawyer owes his client is independent professional judgment.

Elihu Root, a close friend of Theodore Roosevelt’s and one of the titans of the New York Bar, put it bluntly and in terms that could not be better suited to the current predicament. “About half of the practice of a decent lawyer is telling would-be clients that they are damn fools and should stop.”

The Senate Judiciary Committee put Michael Mukasey to the test yesterday. And he left the hearing room as an embarrassment to those who have known and worked with him over the last twenty years, and who mistakenly touted his independence and commitment to do the right thing, come what may. On the other hand, Vice President Cheney, the principal author of the torture system, must be elated and relieved. Indeed, Cheney’s lawyer Shannen Coffin rushed to National Review Online to give Mukasey’s performance an enthusiastic seal of approval. Mukasey flunked the simple test that Elihu Root posed for all lawyers: he doesn’t have the gumption to tell the president that his torture program is unlawful and needs to be shutdown. Moreover, he’s fully bought in to the cover-up.

But let’s get to what Mukasey really means when he says “reasonable minds can differ.” It sounds civil and amiable. But it’s just the opposite. What he’s saying is that the White House and he will decide what the law is, and they’ll act according to their secret understandings. But he’s not going to be held accountable on any of this to Congress. He treats Congress as if they were spectators, not legislators. He forgets that they have a charge to keep under the Constitution. They make the law, or so they think. But they also have oversight over the conduct of the Executive Branch. The essence of Mukasey’s response is therefore quite simple—the President determines and enforces the law; the President makes the law. Congress may not like this, but that hardly matters because Congress has been emasculated. In sum, Mukasey has taken the old legal indeterminacy argument to its Schmittian conclusion.

Waterboarding provides a good starting place for analysis. The second day of Mukasey’s confirmation hearing was dominated by this issue, and Mukasey used a series of tenuous dodges to avoid giving a straight answer to a simple question: “Is waterboarding torture?” In the letter which provided a sort of prologue to the hearing, Mukasey stated

If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.

Again, the starting point is a “reasonable minds can differ” premise. And then a disaggregation—there are some circumstances in which it would be prohibited, and others where it would be a “close question.” Will Mukasey explain to us what these “circumstances” are? He refuses. It is revealing that Mukasey states, just as National Intelligence tsar McConnell did a few days ago, that waterboarding would be torture if it was done to him. This is very revealing of the rationale and why Mukasey is withholding it. The distinguishing principle is clear enough: waterboarding is lawful if the president has authorized it. And it is lawful on the principle that the president, as commander-in-chief, can do as he likes and is not bound by any laws enacted by the Congress, by the Constitution or by international laws. During his first day of testimony, Mukasey repudiated this line of reasoning. But at this point, that repudiation seems about as sincere as the promise that Mukasey gave the second day that he would be happy to respond to questions after he had assumed office as attorney general and been “read in” to the program. It turns out that his answer is that now he had indeed been “read in,” and he has formed an opinion, but he has no intention of telling these meddling senators what it is.

Marty Lederman is, I believe, correct on the broad outline of the secret opinion that OLC has authored and that Mukasey has now embraced.

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not “cruel treatment” under Common Article 3 (even though it is, by Mukasey’s own lights, “cruel”–go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey’s letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where “current law” would (and would not) prohibit waterboarding.

The United States position staked out by Mukasey & Co. is simple enough. We can waterboard, or use other torture techniques like long-time standing, stress positions, hypothermia or sleep deprivation in excess of two days, and it’s just fine. But if other governments use these techniques on Americans, we’ll say that’s torture. How appealing. Gone is the day of a “decent respect to the Opinions of Mankind.” And in its place comes “if the president does it, then it must be legal.” Is it any wonder that Mukasey struggles so painfully to keep this opinion under wraps? Former Deputy Attorney General Comey, who saw the opinion, said that when it was published it would prove extremely embarrassing to the Justice Department and the United States. That assessment is certainly correct. And now we can add: it will further damage the reputation of Michael Mukasey.

Senator Whitehouse, whose performance continues to impress me tremendously, pressed into the status of the Justice Department’s internal investigation of the destruction of the CIA tapes. He made the same obvious point that General Odom made in an NPR interview in which I participated a couple of weeks ago: it’s not really the conduct of the CIA personnel that should be the focus of attention. It’s the conduct of the policy-makers who designed and approved the torture techniques that they used. But this requires an examination of the underlying conduct shown on the tapes, and Mukasey is standing in the way. Mukasey’s explanation for his decision to narrow the focus of the investigation was clear enough. If the agents were relying on “certifications which were given” by the White House and the Justice Department, they’re in the clear. Whitehouse’s hit the nail on the head: “that means you’ve revived the Nuremberg Defense. . . I had authorization and therefore I’m immune from prosecution.” That’s exactly what it means.

Leaving aside the torture issue for a moment, Mukasey was also asked to address the fashion in which the Executive ran roughshod over FISA. Here’s the exchange with Senator Specter:

SPECTER: Is there a legitimate argument that the President has Article II powers to undertake such conduct?

MUKASEY: There are a number of concepts in your question, including whether he has authority to undertake torture. Torture as you know is now unlawful under American law. I can’t contemplate any situation where this president would assert Article II authority to do something that the law forbids.

But of course, the newspapers are full of examples in which the president has done exactly that. In fact we can start with the Signing Statement issued by the White House just forty-eight hours ago in connection with the National Defense Authorization Act. He invoked his Article II authority to refuse to implement four sections of the act. One of these provisions prohibited any permanent bases in Iraq, and several others provided for the accountability of contractors guilty of criminal acts, corruption and fraud. So the “high purpose” for which Bush purports to wield his commander-in-chief power is akin to the conduct of a mob boss. He seeks to shield contractors who are guilty of violent crimes and ripping off the federal treasury from inquiry and oversight. He applies the core concept on which he governs: the principle of non-accountability. And that’s precisely what Mukasey “can’t contemplate.” This is of course not to address the FISA itself, which the Bush Administration did knowingly violate, as Specter quickly pointed out.

Mukasey promised a new rapport with Congress and with the American public, and he promised to restore the integrity for which the Justice Department was once famous. At this point he’s made a few positive personnel moves and given a few encouraging speeches, but when we come back to a focus on the major issues that he was forced to confront in the second day of his confirmation hearing, there is precious little to separate his opinions and conduct from his tarnished predecessor, Alberto Gonzales. Mukasey owed his confirmation to the fact that New York Senator Chuck Schumer decided to back him, incurring the wrath of a large part of his constituency in the process. Schumer spoke for most of the audience in summing up:

I thought there was a hope, not large, that you just might rise to the occasion. So I’m not surprised with your testimony, but I remain disappointed.

And if you expected an attorney general with integrity, courage and independence, that’s not an assessment on which reasonable minds can differ.

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