With the backing of New York Democratic Senator Chuck Schumer, the confirmation of Michael Mukasey will go to the full Senate, where he will be confirmed.  Schumer’s support comes with a simple explanation.  The AG nominee could have been a lot worse.  Faint praise.  I had hoped this would go very differently.

But why does it really matter?  After all, Judge Mukasey will be AG for about 12 minutes total before a new administration steps in with its own people.  Thankfully, John Ashcroft stuck his head out of his big fat hole yesterday to remind us why the AG counts.  In a New York Times op-ed, Ashcroft wrote to support immunity for telecoms who made the government’s life easier.

The immunity of telecoms for bending over to accommodate the Department of Justice and its campaign to wiretap “to protect us” from whatever it is they want us to be afraid of at any given moment has not received the attention it should.  It’s a big issue, and this may be the only way to spank industry for happily becoming a willing conspirator in the end of privacy.  Ashcroft explains:

Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.

Mind you, it’s not like our government, dedicated to freedom as it is, let us know that this was happening at the time.  It has to be secret, you know, or the terrorists win (or some such nonsense).  So when we learn of governmental indiscretion, there are only a few ways to deal with it.  One way is to go after those who facilitated it.  Not just to win some money, but to teach a lesson, to them and to those other entities that will be asked to “serve their country” in the future.

Have you seen those nice corporate statements about how company’s “care about our privacy?”  They ask us all sorts of personal information, and tell us how they will protect it for us.  We use them to keep our telephones working (in this instance), and our bank accounts, and our purchases, and our mortgages.  We understand why they might need so much of our personal information, but we expect them to live up to their word.  We expect them not to give it up for the asking.

Here, the asking was done by the government.  The President said they should do so.  The Attorney General said is was okay.  These are high governmental officials.  Ask them, they’ll tell you.  And when a high government official says “jump”, companies ask “how high?”

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

So what do we expect of those corporations that control the means of giving the government carte blanch access to our private lives?  We expect them to say no.  We expect them to say that say that they will comply with a court order to do so, but not a mere demand from the executive branch.  We expect them to stand behind their promises and refuse the voluntary request that they be nice and compliant with our privacy.

If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.

Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Ashcroft makes it clear: Corporate America is, in his eyes, a weapon of the executive branch, to be pulled out and used whenever the attorney general decides its ripe.  In the world of Ashcroft, there is only one real branch of government, and it is without limitation.  If the Department of Justice was prevented from using the assets of corporate American at will, it would be “a form of unilateral disarmament.” 

The consequences of this pathetic flag-wrapping are unlimited.  The government wants unbridled power to invade the privacy of any individual or group at will, and if reliance on the demand is sufficient to gain immunity, there is no business in America that will ever say no to the invasion of privacy again. Indeed, as with every act of government since 9/11, its justification is grounded in the government’s on-going exploitation of fear and couching compliance as an act of patriotism.

Assuming that the country’s communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators.

Ashcroft’s day at the helm is over.  Michael Mukasey will be steering the ship of Justice, though he’s managed to make it this far without ever hearing of Chinese water torture.  He will assume the power to snap his fingers and make our privacy disappear.

Do I trust Michael Mukasey to safeguard my privacy better than John Ashcroft?  Yes, I sincerely do, but then again, my comparison sets a very, very low bar.  Nothing Ashcroft wrote makes me think that a decision by a neutral magistrate would endanger national security.  And nothing makes me think that the Justice-Corporate Complex is any less a threat to America than external attack.  The rot of ideals from the inside will pose a far more lasting threat to the foundation of our Constitution than any attack by foreign enemies.