The Senate Flirts With Irrelevance (or Worse)

Since they are aggressively not talking about the war, the two most important domestic policy issues before Congress at present are the FISA re-authorization and the nomination of Michael B. Mukasey, a man who is an intelligent prevaricator about torture and a straight-forward authoritarian about Presidential power to be our next Attorney General.

The Senate's capitulation on FISA includes retrospective amnesty, without even a need for truth and reconciliation, for all the telecom companies that violated the law, knowingly, and allowed illegal eavesdropping of telecoms traffic just because someone in government asked them to do so. There is now some evidence, arising from the Nacchio fraud trial, that the illegal spying program started well before 9/11 — the smoking gun that this amnesty plan may be designed to hide.

The whole idea of these companies going along with oral requests that they had to know were illegal is positively Soviet. So too are the all-too-credible allegations that when Qwest failed to play ball with these illegal requests, it got punished by being denied government contract work for which it was best qualified.

That the Senate would agree to an amnesty with no disclosure in these conditions is one of the best arguments for term limits that I have ever heard.

Senator Chris Dodd, emerging as the conscience of the Presidential field, has placed a hold on the FISA bill. I hope his colleagues are grateful to him for saving them from their own folly.

Even so, no hold seems likely for the Mukasey nomination, further cementing the irrelevance of the Senate and its quiet complicity in torture and other outrages. Yes, there's a tradition of allowing most nominees to go through, but torture ought to be exceptional. And if that won't do it, why on earth is the Senate going to confirm a man who testifies that he believes the President can violate statutes on national security grounds more or less whenever he wants to?

Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

…

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

…

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly…

I think this means that confirmation would be a grave error — even if failure to confirm keeps Peter Keisler, the perhaps equally absolutist temporary AG, in office for a long time. (I happen to have known Keisler reasonably well a long time ago, back in college and law school. He always seemed a deeply decent person on a human level. He was also one of the most right-wing people I knew and his political viewpoints were extreme even then. But then he might well say the same about me for all I know.)

As for the Senators, if they don't care about the Constitution, is there at least no jealousy left for the legislative prerogative? Primaries for them all, I say.