My personal fall recess has come to an end, and apparently just in time to see Mukasey receive Senate approval for the recently vacated Attorney General spot. Lucky me.

The first problem, although not the most significant, is that this guy doesn't know if waterboarding is torture. It was a war crime fifty years ago when we sentenced Yukio Asano to fifteen years of hard labor for, among other things, waterboarding. Two decades later on January 21st, 1968, this photo of an American soldier waterboarding a Vietnamese POW graced the cover of The Washington Post:

That soldier was court-martialed less than a month later. Thirty years later, a potential Attorney General is still unclear on the issue? Quite unimpressive, and also a bit scary. The Detainee Treatment Act of 2005 that President Bush signed says that no "treatment or punishment prohibited by the Fifth, Eighth, and Fourteen Amendments" can be used on those in our custody. If the administration is allowing detainees to be waterboarded, then they must also believe that the technique doesn't violate the Constitution, and can also be used on citizens. To argue otherwise would mean that they are intentionally violating the Detainee Treatment Act of 2005.

While Mukasey's refusal to call waterboarding torture is foolish, it isn't his most significant failing. As Russ Feingold said in a statement released on Sunday, the Attorney General nominee is "unwilling to reject the extreme and dangerous theories of executive power that this administration has put forward."

During his testimony a few weeks ago, Mukasey was considerate enough to say that "the President doesn't stand above the law." Unfortunately, he went on to say that the President doesn't need to obey all laws. He instead says that it depends "on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country."

Jed Rubenfield wrote in The New York Times that:

According to Judge Mukasey's statement, as well as other parts of his testimony, the president's authority "to defend the nation" trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president's lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way "to defend the nation."

If he is not, we no longer live under the government the founders established.

Under the American Constitution, federal statutes, not executive decisions in the name of national security, are "the supreme law of the land." It's that simple. So long as a statute is constitutional, it is binding on everyone, including the president.

Mukasey also frequently refers to "the gap between where FISA left off and where the Constitution permitted the President to act." This sounds remarkably similar to Gonzo's stance that the Constitution made FISA approval unnecessary. Apparently, this warrantless wiretapping program was so far into the realm of being legal that the Bush administration is continuing to demand retroactive immunity to telecom companies. Oddly, they don't see any disconnect between demanding immunity and their claims that no laws were broken. The only comments Mukasey has made on this program appear to indicate he shares the White House philosophy that if the President does it, it can't be illegal.

John W. Dean last week wrote of the parallels between this situation and that of Nixon:

Nixon's Attorney General had been removed (and was later prosecuted for lying to Congress) – a situation not unlike Alberto Gonzales's leaving the job under such a cloud. Nixon was under deep suspicion of covering up the true facts relating to the bungled break-in at the Democratic National Committee headquarters at the Watergate, not to mention widespread rumors that he had engaged in abuses of power and corrupt campaign practices. Today, Bush is under even deeper suspicion for activities far more serious than anything Nixon engaged in for there is evidence Bush has abused the laws of war, violated treaties, and ordered (or approved) the use of torture and political renditions, which are war crimes.

Since Judge Mukasey's situation is not unlike that facing Elliot Richardson when he was appointed Attorney General during Watergate, why should not the Senate Judiciary Committee similarly make it a quid pro quo for his confirmation that he appoint a special prosecutor to investigate war crimes? Richardson was only confirmed when he agreed to appoint a special prosecutor, which, of course, he did. And when Nixon fired that prosecutor, Archibald Cox, it lead to his impeachment.

Now that's something I could get behind.