Defending the government’s right to employ “harsh interrogation” techniques, the nominee for attorney general declined to acknowledge that drowning is torture. Michael Mukasey’s rationale: he doesn’t want to put executive branch officials who may have ordered drownings in legal jeopardy. This declaration is as good as a promise that the nominee will fashion his legal opinions to accommodate the criminal activities of his superiors. He has no intention of subjecting himself or his bosses to the rule of law.
Keep in mind that this is the same jurist who questions the constitutional authority of Congress to restrain the president on matters of war and peace, the constitutional right of habeas corpus, and the criminal and civil liability of high-ranking officials.
His testimony presents a serious issue for lawyers, who are bound not to tolerate the antilegal ravings of such zealots. A lawyer who makes legal assertions that are not supported by precedent violates our code of professional responsibility. We’re not allowed to take positions that have no basis in law. Like the idea that the president’s authority as commander-in-chief somehow trumps the Congress’ authority to make laws or the constitutional prohibition against torture. Suddenly, in Mukasey’s paradigm, checks are removed from the system of checks and balances. Because of some extraordinary circumstance that he argues attends 21st Century life, Mukasey promises to put the system out of balance. He claims that this sort of violence to law has some basis in law. It does not, as all lawyers know. Lawyers that make arguments such as those advanced by Mukasey are not entitled to hold such views and retain their place at the bar.
Lawyers should recall a time 70 years ago when their German brothers at the bar sold out to totalitarians. Joseph Goebbels and Adolf Hitler couldn’t have accomplished their insanely arrogant mission without the connivance of lawyers and judges like Mukasey. Far from qualifying him for the post of attorney general, Mukasey’s testimony stands as grounds for disbarment.