JUST ENGAGE

The Justice Department has been in turmoil for quite some time now. Congressional Democrats have charged that President Bush and his second Attorney General, Alberto Gonzales, politicized the Justice Department in an unprecedented way. Like most issues here in Washington, partisanship overshadows public policy. This was the context of Attorney General Michael Mukasey’s first visit to the Senate Judiciary Committee for an oversight hearing. I watched the hearing for about an hour and a half. At that point I was so dizzy I could barely concentrate.

Deep below the surface, beyond the partisanship and political posturing, there are substantial questions about the role of the Justice department in several controversial Bush Administration programs. I will focus on two: the warrantless wiretapping program dubbed the Terrorist Surveillance Program, and the CIA’s Enhanced Interrogation Program.

The Foreign Intelligence Surveillance Act (FISA) is a pretty popular bill these days—all of the most powerful people in Washington are talking about it. It even made an appearance during the State of the Union. Yesterday, FISA was the first topic of discussion on Senator Arlen Specter (R-PA)’s agenda. Senator Specter, along with several other prominent Members of Congress have charged that the warrantless surveillance program was illegal and violated FISA. During the oversight hearing, the AG wouldn’t really respond. Basically the response was, that it is lawful now. That begs Senator Specter’s original question, was it unlawful when initiated? And around we go.

The second point of contention was waterboarding. This issue almost derailed the Attorney General’s confirmation. The issue is frustrating for the Administration. When reading between the lines, it seems that the President himself may have authorized the waterboarding of several detainees in CIA custody. (Unfortunately, we don’t have the tapes to know exactly what happened.)

One of the big issues is whether waterboarding “shocks the conscience.” If so, then most would agree that is clearly illegal. So then, does it? In a strange exchange with Senator Joe Biden (D-DE), the Attorney General claimed that “shocks the conscience” is really a balancing test between the quality and quantity of information extracted and the cruelty of the method. At the very least, that is a controversial claim. Many would argue that there isn’t, or at least shouldn’t be, this type of relativism built into the definition of torture.

And in the end, all of this comes down to the struggle between the three branches of government. Can the President disregard laws passed by Congress? If so, under what circumstances? To collect foreign intelligence information—either electronically or by interrogation? This is best summed up by a exchange between Senator Specter and the Attorney General.