Your article and the current maneuvering in the Senate show why torture should never be used: What we are seeing is the corrupting effect of torture and the delegitimization (if there's such a word) of the political class. If Bush had a plan for shrinking the government, use of torture turns out to be the perfect strategy. Our government now has the moral stature of the government of Argentina, which had the thinnest of Peronist legitimacy before the Dirty War and no legitimacy after. Likewise, the government of Chile, now democratic, is in a quandry due to the years of Pinochet and his gang. If Mukasey does not have a commitment to the Constitution, he should not be confirmed. And a commitment to the Constitution is going to require prosecutions for torture. (Or, at least, the inconveniencing of Yoo by getting him off the public payroll in California.)

Did I mention impeachment? Are we pretending that a policy of torture is not an impeachable (and removable) offense?

I don't have great hopes for any action to defend the Constitution from Versailles on the Potomac, though. I suspect that the Senate will confirm Mukasey, and then, maybe we can have a discussion of our decadence.

Have a look at Jack Balkin's latest post on this question.

http://balkin.blogspot.com/2007/11/judge-mukasey-and-groucho-marx.html

Balkin thinks the NYT (and Silliman, unfortunately) got this question wrong. There is a long list of reasons why all potential targets of civil and criminal suits would have immunity. So even if Mukasey's admission did result in it becoming clear that CIA agents and their superiors carried out and authorized criminal torture, they could never be prosecuted or sued. I place lots of stock in Balkin's opinion, though I'd like to see the legal details.

Legal guy, thanks for the link. It includes this statement, "if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution".

So, even though those who conducted the torture cannot be prosecuted, wouldn't it still be possible to prosecute those who wrote the opinions (as in Yoo) as well as those who implemented policies (as in Bush) that are clearly illegal under the Constitution? And, is it not also possible for the Supreme Court to overturn the MCA as unlawful?

The letter submitted yesterday by Ashcroft, Comey, Goldsmith, and Philbin to Congress pressing for immunity seems more geared to keeping them personally out of legal jeopardy, rather than the telcos (which already possess indemmnity).

Similarly, it seems to me, those who wrote opinions and signed off on the policy of torture could still be prosecuted, even though individuals in the CIA acting on those orders could not.

On problem down (apparently) - another to go.

Something tells me tpm readers don't need dafodilkemmy - either.

Thanks management. (and we did promise to take the blog post (click) down - but await confirmation on that.

SIMPLE SOLUTION; have subordinates at the State Department grant everyone immunity. Duh!..

...and then Congress can vote to "retroactively" remove our signing of the Geneva Conventions.

It could be called the "Save America Act."

"if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution".

Exempting those in charge from criminal actions is entirely opposite democratic ideals. We have fought numerous wars and battles and conflicts (you have to use all these terms since Congress no longer wants to commit itself to actually doing its job in waging war before having innocent folks killed) directly due to dictators and others exempting themselves from laws and rules their subjects were mandated to obey.

In a democracy... and in our own society below the level of federal government, and attorney's opinion does not hold water or any weight if it is illegal. If it did, I could have an attorney write up an opinion that my murdering someone is exempt from law and it would protect me from prosecution.

The real travesty here, folks is not that the administration has tortured, not that they have decided to attack a country without cause, not that they have decided to exempt themselves and their hirees from prosecution in Iraq, not that they have decided "We the People" need to be spied upon with or without Constitutional permission.

The actions to fear is more basic and more dangerous is that Congress and the Senate is fully aware of the deeds and transgressions and has decided to allow it to continue. We have about 6 hundred folks up their in Washington voted in by "WE the People" who have decided not to submit or support actions to stop these events from happening now or in the future. Instead, they are condoning it (yes, I know they are speaking out against these clowns... but at the same time they are also voting to continue the actions).

Want to stop the war?
Refuse to vote into office anyone who has voted to keep it going...

Want to stop corruption?
Refuse to vote into office anyone who has voted for and promoted watered down ethics laws or who hasn't attempted to stop corruption...

Want to stop the president from having such powers?
Refuse to vote into office anyone who hasn't attempted to introduce laws to reign in the power...

These mobsters we have placed in a position to decide our destiny have done none of this. Instead, they have been catering to their constituents vocally, but have just continued to subvert their mandates in order to give them positioning for their future.

... and "We the People" have decided this is what we want... IMHO

Critical Question : is the head of the Office of Legal Counsel going to be confirmed ? Is he in his position legally ?

The time is long past by which, legally, he was to be confirmed ...

In my view, the real question is not whether waterboarding is "torture," but whether it's "cruel and unusual." Which it most certainly is. That's why it's illegal.

No? Well, do it to a dog or a cat and see what the law says about it as they put you in the prison bunk above Michael Vick's.

But it's a moot point. Republicans have no conscience and Democrats have no spine. They'll confirm Mukasey and get on with the important business of giving Halliburton a nice Christmas bonus with OUR money.

If I'm wrong and they don't confirm, it's still a moot point. Bush will appoint him during the Chrismas recess.

The hearings are a sham and Mukasey is the next Attorney General, period.

Of course the bigger question that Mukasey is doing his very best to answer is whether or not the Bush's claim of being above the law in times of war is legitimate. Bush/Cheney has claimed power as a unitary executive in a great many of the 750 signing statements he has appended to legislation he has signed.

I suspect also that the congress is very reluctant to challenge this claim or presidental power before the Supreme Court for fear that the increasingly conservative court just might legislate from the bench that Bush does have the power to order torture, to imprison "enemy combatants"--at home and abroad, to spy on the American people, to ignore the constitution, etc. etc. etc., in his job to provide for the security and safety of the American public.

Mukasey does not want to go out on a limb on this for the same reasons.

well, not to say, 'told ya so', but... well... told ya so. I said this almost immediately when this business started.

If Mukasey agrees that waterboarding is torture, then someone(s) has to be prosecuted.

Please, Dems... don't fold on this one!

Legal guy -- thanks for the follow up. I agree that the bit of good faith reliance on OLC opinions is the lynchpin in any defense to be mounted. However, for my money the key phrase is the other one you mention, "a person of ordinary sense and understanding would not know the practices were unlawful". This gets to the heart of Nuremburg I think. No one, not even the dimmest thug at CIA who passed the 8th grade would be unaware of Constitutional prohibitions against cruel and unusual treatment. That very expression is part of our common vernacular, not some obscure complicated bit of legal wording. They would have to know their conduct was ultimately indefensible.

To hell with it. Let them all be prosecuted or (for Bush and Cheney) impeached.

I think the real question is what the next AG says about all of these things if a Dem wins the presidency. I hope they don't feel the same pressure to take the Mukasey line.

Does OLC have some claim to Executive Privilege or immunity?

Pappy washed his hands of Iran-Contra. The only residue was the persisting stench of corruption. Among the fishmongers of Washington, such a smell went unnoticed; among the rest of us, commenting upon the pardons was a faux pas committed only by politically unsavvy boors. Everyone else nods and winks.

When Puppy arrives on the scene, not by divine intervention but by the legal machinations of people who also benefited by Pappy's corruption, who expected an upright and honest administration? Even now, six years into it, we don't know the most basic facts. We suddenly realize the theoretical legal implications Verschaerfte Vernehmung brings and -- is it possible? -- Puppy Bush might have violated the law.

How do you nod and wink away torture, suspending habeas corpus, aggressively invading a sovereign nation, the unitary executive, etc?

Have long-tenured members senate finally decided to draw a line -- HERE, GODDAMMIT AND NOT AN INCH MORE -- when they could have drawn it so many times before?

Doubtful.

Thera P:

There is no such thing as the "World Court". Perhaps you are referring to the International Court of Justice. Alas, this Court does not deal with war crimes, or any crimes: it only deals with disputes between nations.

Perhaps you are referring to the International Criminal Court. Bush refused to ratify the Court, on the grounds that it could subject American citizens to criminal prosecution outside the U.S. (Of course, that was the whole point of the court....) Since most of the torture has not occurred in countries that have ratified the ICC, there is only one way that the ICC could have jurisdiction: the Security Council would have to refer the matter to the ICC.

This possibility is intriguing. Of course, the U.S. has veto power over the Security Council. Therefore, any referral of U.S. torture charges to the ICC would have to be with U.S. consent. This will obviously not happen under Bush. However, I believe that there is no statute of limitations at the ICC, so if the political winds change ten or fifteen years from now, the U.S. could allow the charges to be brought. Also, any immunity conferred by the U.S. government would not be effective at the ICC.

I'm not quite sure what Mukasey has to do with any of this. By treaty, we have acknowledged that waterboarding is is war crime. The US has prosecuted waterboarding. There is established case law on the matter. Further, we are parties to treaties (which under the constitution are the law of the land) the prhohibits such oppression. The only substantive question that remains is whether Hillary will permit the wholesale prosecution of Dubya & Co. as they continue to engage in criminal behavior.

why is that a dilemma? those in govt who violated the law SHOULD be prosecuted, and punished --- right on up to the president. that's the way it goes for ordinary citizens. no one should be above the law. and if Mukasey is unwilling to prosecute lawbreakers within the administration, he definitely should not be AG.

So, we can't admit it is what it is.

During the Clinton administration we played with impeachment for political reasons. Now we play non-impeachment for the same reasons. Which is likely to hurt us more?

If "the votes" are the reason, every Congressman and Senator who cares about this country ought to be broadcasting that. Something like: Sure he warrants an impeachment investigation, probably several. But, in the end the partisan politics says he'd still be in office.

If one steps back, just a little, and examines this thread... geezus, why is there even a question?

Is waterboarding torture? YES.
Did we punish others for this practice? YES.

Everything else is flotsam.

Look what's become of this nation.

Bush can never permit a nominee to acknowledge that water boarding is torture.
It does not matter whether our own interrogators would be subject to criminal prosecution. The very damage to dear leader's reputation would be sufficient to cause Bush to prevent such an acknowledgment.

However, there is a more serious issue presented by this matter. We are dealing with crimes by the highest officials in our country. Indeed, Bush and his cohorts are war criminals. I doubt that they would be prosecuted. However, the embarrassment and loss of prestige to the United States would be horrendous.

What does a nation do when it finds out that it is indeed engaged in the same kind of conduct that has been abhorred by every civilized country on this planet? How do we, as a people, respond to a government that has engaged in crimes against humanity?

The result of the Bush administration will very well test the moral resolve of all of us. There are only two options:

1. Recognize that our government violated US law and the Geneva Convention.

2. Avoid the fall out by refusing to investigate and by failing to acknowledge that our actions were wrong.

The first choice would provide the US with the opportunity of rehabilitating its image. The second choice will create an institutional moral ambiguity that inevitably rots away at our democracy. It is not a slippery slope, it is indeed, a well greased slope.

Allowing this man, who not only gives the Bush administration a get out of jail card for torture, but also gives the Executive branch the right to ignore the law in the name of national security, would be disastrous to the country. It would also end permanently any moral advantage that Democrats might have had.

It's time that Chris Dodd or some other leading Senator (!) put the kabosh on the nomination procedurally, such as a Hold. Regretfully, it may be our only hope for holding up principle in a Senatorial Club that has lost any semblance of humanity.

Dick will be safely ensconced in his bunker in Dubai on January 21 2009; maybe earlier if he's as smart as we think he is and doesn't show for Hillary's coronation at all. After all he is not part of the Executive Branch (or any other commonly known branch of government) and won't have anything to turn over so why does he have to show? After all why do you think Halliburtin moved it's HQ there in the first place?

Allsburg: Actually there is a "World Court" its the colloquial name for the International Court of Justice, "principal judicial organ of the United Nations, established by chapter 14 of the UN Charter". (Google is a miraculous thing). The World Court was its name under the League of Nations and its functions were transferred to the new court when the UN was created.

The fact that he finds it morally repugnant is completely irrelevant. I find the speech of White Supremacists morally repugnant, but I don’t think it should be illegal.
Please read my entire blog post on this issue @ http://www.standingbeforethefire.com

Please read the quote below-Democrats are such hypocrites and flip-floppers it is saddening. They need some fair and balanced reporting.Why is this sad case of Hillary's flip-flop not front page news?

The “ticking bomb scenario” represents a narrow exception to what should otherwise be our categorical prohibition against torture. After all, “in the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans,” it might be necessary for a president to make “the decision to depart from standard international practices[.]” The president, of course, “must be held accountable” for such a decision; but the president would have to be prepared to make it in such dire circumstances.

Who says so? Senator Hillary Rodham Clinton, that’s who. The Democrats’ coronee-in-waiting made the comments in an interview by the New York Daily News last October.

As is the senator’s wont (see, e.g., myriad positions on Iraq, Iran, illegal immigration, etc.), she has since flipped from this flop — just in time for a candidates’ debate before a base inherently hostile to such flashes of common sense. But she clearly made the remarks. It was thus jarring to find her announcing opposition on Monday to Judge Michael Mukasey’s nomination to become the next attorney general because, as Sen. Clinton explained, “I am deeply troubled by Judge Mukasey’s continued unwillingness to clearly state his views on torture and unchecked Executive power.”

(Andrew McCarthy)

I second TheraP's assessment: excellent thread/comments, great observations.

...and a huge thank you to Randall and gtash for pointing out the US legal precedent establishing waterboarding as a crime. I was nearly positive I'd seen that somewhere, but haven't had any luck with google. Merci.

Having just read the letter in full, I was rather shocked at some of the arguments made.

I'm not a lawyer, so I'd appreciate opinions on the contents: specifically page 3, 3rd paragraph, where he appears to be setting up an argument (citing case law) that it isn't possible to make a determination as to whether some particular method or another constitutes torture, since it must be considered on the basis of the situation in which it is employed.

Am I reading that correctly?

I'm prepared to accept Silliman's argument and its outcome that Mukasey can't give a direct answer to questions about the legality of torture, with one proviso. That is that Silliman also accept that the Senate cannot confirm a nominee to the position of Attorney General when that nominee refuses to answer so fundamental a question.

IOW, what this all amounts to is yet another reminder that while a president can implement national security policies alone, without support from congress, doing so has really bad consequences. It's a corollary to Justice Jackson's famous dictum.

In this case, if Silliman is right, it has resulted in it being literally impossible to fill the position of Attorney General -- because any nominee must remain silent about the legality of the president's policy, and the Senate must reject any nominee who remains silent on the legality of the president's policy. It's just an issue too fundamental to our identity as a nation of laws.

This is the kind of log jam that results from one branch running too far afield from the other two. Sure, they can do it; but the results are disastrous.

Ultimately, presidents do have to have congressional support for their policies, even if they can, in the short term, implement those policies without congress. It's the difference between having power to do a thing, and having authority to do it.

President Bush has accumulated a lot of power, but at the expense of having any authority.