Sen. Schumer's response to my letter

Here is Sen. Schumer's response to my letter criticizing his support for Michael Mukasey for attorney general. There are several problems with Schumer's argument. (See my comments after the letter).

Dear Mr. Cohen:

Thank you for contacting me to express your opposition to the nomination of Judge Michael B. Mukasey for attorney general.

As you may know, I voted in favor of Judge Mukasey’s nomination. I did so for one critical reason: the Department of Justice is a shambles and is in desperate need of a strong leader committed to depoliticizing the agency’s operations.

The department has been devastated under the Bush administration. Outstanding United States attorneys have been dismissed without cause; career civil-rights lawyers have been driven out in droves; people appear to have been prosecuted for political reasons; young lawyers have been rejected because they were not conservative ideologues; and politics have been allowed to infect decision-making.

We now have the potential to improve this critical department. There is virtually universal agreement, even from those who opposed Judge Mukasey, that he would do a good job in turning the department around. Indeed, my colleagues who opposed his confirmation have gone out of their way to praise his character and qualifications. More importantly, Judge Mukasey has demonstrated his fidelity to the rule of law, saying that if he believed the president were violating the law he would resign.

My colleagues and I, and many others, spent a great deal of time and effort to expose the failings of Alberto Gonzales. I did not want to see those failures continued by the installation of a caretaker, acting Attorney General who would do the bidding of Vice President Cheney and his Chief of Staff David Addington instead of working to get the Justice Department back on track.

I understand and respect those who believe that Judge Mukasey’s view on waterboarding should trump all other considerations. Like you, I believe that the cruel and inhumane technique of waterboarding is not only repugnant, but also illegal under current laws and conventions. I too found Judge Mukasey’s refusal to classify waterboarding as a form of torture unsatisfactory. Therefore, I hope Congress will soon pass S.1943, a bill I am cosponsoring to explicitly ban the use of waterboarding and other abusive interrogation techniques. Judge Mukasey not only made clear to me that the president would have no legal authority to ignore such legislation, but also pledged to enforce such a law. Some say such a law is unnecessary because waterboarding is already illegal – a view with which I fully agree. However, there appears to be enough dissention and confusion in the legal community, and within the White House, that a new law, which makes the illegality of waterboarding crystal clear, can only help.

Further, even if we don’t pass a new anti-waterboarding law, on the issue of torture we would be better off with Judge Mukasey than with a caretaker. The Judge has stated that he would abide by a court or Office of Legal Counsel ruling against the practice. We could certainly not expect the same from a caretaker appointee who would be more likely to embrace the theory of the unitary executive.

Had we rejected Judge Mukasey, President Bush made clear his intention to install an acting, caretaker attorney general who could serve for the rest of his term without the advice and consent of the Senate. To accept such an unaccountable attorney general, I believe, would be to surrender the department to the Administration’s extreme ideology and abandon the hope of instituting the many reforms called for by our investigation. I believe the rejection of Judge Mukasey would have been a symbolic victory in the short term, but it would have ultimately delayed reform at the Justice Department and, in all likelihood, caused more problems in the long run.

Indeed, it is my hope Judge Mukasey’s first weeks as attorney general are an indicator of his service to come. Days after he took office, the Justice Department reopened an internal investigation into the administration's warrantless surveillance program, which had stalled for over a year under his predecessor. More recently, the recall of the controversial U.S. attorney for Minnesota, whose radical views and poor management were symbolic of how far the Justice Department had fallen, is a tremendous step towards dismantling the legacy of Attorney General Gonzales. While there is certainly more to do, it is my hope that Judge Mukasey will do what it takes to remove the stench of politics from the Justice Department.

Again, thank you for contacting me on this important issue. Please do not hesitate to contact me in the future if I can ever be of assistance to you on this or any other matter.



Sincerely,

Charles E. Schumer
United States Senator

As I said above there are several problems with Schumer's argument:

First of all he says: "I hope Congress will soon pass S.1943, a bill I am cosponsoring to explicitly ban the use of waterboarding and other abusive interrogation techniques. Judge Mukasey not only made clear to me that the president would have no legal authority to ignore such legislation, but also pledged to enforce such a law."

Sen. Schumewr and I both know even if such a bill were to pass this Congress (a highly unlikely event) the president would either veto it with some self serving excuse or attach a signing statement that would vitiate it and make it possible for Mukasey to continue to stonewall it.

Secondly, Schumer states: "Had we rejected Judge Mukasey, President Bush made clear his intention to install an acting, caretaker attorney general who could serve for the rest of his term without the advice and consent of the Senate. To accept such an unaccountable attorney general, I believe, would be to surrender the department to the Administration’s extreme ideology and abandon the hope of instituting the many reforms called for by our investigation."

When will Sen. Schumer stand up for what's right and represent justice and not continue to allow Bush to blackmail the Senate into cowering before his un-American activities. Although there are many ways in which the Cheney/Bush administration has made a right turn away from basic American values (I know its not the first administration to do so, but it's the one with which we currently have to deal), few better represent the core un-American aspects of this administration than its justification of torture as a legitimate method of acquiring information from prisoners.

Mukasey's response to the question about waterboarding made him no more than a cog in the Cheney/Bush right-wing machine. It's time for a change.