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November 1, 2007
And Down the Slope They Come!
I mention this trademark call because the nomination of Michael Mukasey for Attorney General shows me just how far and how fast we are racing down the slippery slope of constitutional liberty toward despotism.
This week, nominee Mukasey responded to written questions from the Senate Judiciary Committtee. Marty Lederman at Balkinization has the nominee's responses here.
Mukasey has been under pressure from Democrat[ ] Senators to state unequivocally that waterboarding is torture.
But it seems to me that the nominee's answer to a different question offers a far more dangerous glimpse at the future.
On pg. 16, the question is asked whether a president -- any president -- has the constitutional authority to imprison indefintely and without charges a U.S. Citizen, seized on American soil, solely on the president's say-so that the citizen is an enemy combatant. Mukasey did not say "no". He wrote this:
I believe that the Supreme Court in Hamdi left this as an open question. . . .
That, sadly, was no answer at all. The Supreme Court was not faced with that question in Hamdi and so had no need to answer it. Clearly, Mukasey was asked.
But he could not muster the courage to say "no, the Fifth Amendment's due process clause bars such lawlessness." He could not say "no" to this administration and "yes" to the Constitution he must swear to uphold.
Perhaps Mukasey was being coy. Perhaps, as with waterboarding, this administration has already seized and imprisoned indefinitely and without charges U.S. Citizens on American soil; but we just don't know about it yet.
But if the answer to that question is "yes," we as a nation will be headed most definitely, and perhaps irreversibly, toward a world of concentration camps and gulags filled with nonpersons and no dissent. Whatever the good intentions of Mr. Mukasey, the road ahead that he's paving with those words leads to darkness.
Posted by shertaugh at November 1, 2007 11:28 AM