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Mukasey: No Inherent Presidential Power to Torture
Now it's John Yoo's head that's exploding.
During the just-underway second day of questioning for Attorney General-designee Michael Mukasey, Sen. Arlen Specter (R-PA) asked whether there's any inherent presidential power to order torture, a central constitutional contention of former Office of Legal Counsel attorney John Yoo in the famous August 1, 2002 Bybee memo (pdf). Mukasey's answer? "The president can't authorize torture because torture is barred both by statute and the constitution." Mukasey, firmly in the realm of mainstream legal opinion, said the 5th, 8th and 14th amendment prohibit torture.
The answer is revealing less for the specifics of the answer than for Mukasey's perspective on the president's constitutional authority. It turns out, contra Yoo, that the president can't do anything he wants during wartime, according to the new would-be attorney general.
Comments (19)
donviti wrote on October 18, 2007 10:51 AM:I don't buy it for a minute, these guys always find some "what if" scenario to weasel away too.
People thought Alito and Roberts wouldn't be so bad too.
Buckethead wrote on October 18, 2007 10:59 AM:This doesn't mean much. The Bushies have demonstrated over the past several years that their definition of torture is much different than what a normal person would consider torture, and that their definition changes based on whatever they want to do. If they're doing it, it's not torture.
jolly ranchero wrote on October 18, 2007 11:15 AM:Yeah, I'm sure he's not just saying whatever the Congress wants to hear. Nope. No precedent for that. NOne.
There's no way he plans on going in and changing shit up with ~1 year to go. Too hard. He's there to sign what he's told and brew Cheney's coffee.
kaw-liga wrote on October 18, 2007 11:21 AM:Although I don't like anything with a "conservative" label, these days, I do think it likely that he means what he says. This is an old-line conservative who will not buy into the "anything goes" Bush doctrine.
That doesn't mean that he won't buy into some pretty abhorrent concepts -- he's a conservative. It just means he did his conceptualizing while Bush was still in nappies.
Thanks.
mp
nellieh wrote on October 18, 2007 11:27 AM:There will always be room for them to parse. This is just a dance in Washington. Diane had him confirmed before she started her questioning. He will be better than Gonzo but that is relative. An ambulance chaser would have been better than Copnzales.
Llyonnoc wrote on October 18, 2007 11:29 AM:Remember, Americans don't torture. That is pretty much all Mukasey said. Whatever it is we do (even waterboarding) it is not torture because, now repeat, "Americans don't torture.?
When thinking of Mukasey remember as a judge he decided that the president could seize an American on American soil and hold him without charges and trial forever. (He was reversed by the Court of Appeals.) That itself is a form of torture. But repeat, "Americans don't torture."
Mukasey in the hearing justified his holding by suggesting that the United States may be a battleground. The only senator who even pried into this was Senator Feinstein. Mukasy is scary because he's an empoered Gonzalez. Yikes!
ej wrote on October 18, 2007 11:32 AM:The key here is, and has always been, the definition of torture and whose definition counts.
Katherine wrote on October 18, 2007 11:43 AM:Yes, he is better than Gonzales on the executive power question. As to the legality of waterboarding, etc. there is nothing he has said that hasn't suggested he'll be identical. For God's sake could you balance our your coverage? You are misleading your readers.
bushenvey wrote on October 18, 2007 11:44 AM:What about on foreign soil? Was that asked?
Jeff wrote on October 18, 2007 11:48 AM:Well if torture is unconstitutional because it "shocks the conscience", then that would include wateerboarding as well.
But someone needs to ask him point blank whether waterboarding is torture.
Katherine wrote on October 18, 2007 11:55 AM:Lindsey Graham asked him yesterday whether evidence obtained through waterboarding would be admissible at military trials. Mukasey claimed not to know what waterboarding was. I doubt very much that Addington or John Yoo's heads are exploding. Yoo has argued all along that yes, they rejected some of the arguments in the 2002 torture memo, but they justified the same techniques on other grounds--on that front, nothing changed, and I don't see any basis from this hearing to assume it's going to change now. Ackerman is gloating over tiny concessions.
Katherine wrote on October 18, 2007 11:58 AM:Well, maybe not tiny, but quite, quite limited.
Question: that NY times memo on torture that they reported on a few weeks ago--will it remain in effect if Mukasey takes office? If not, what specific answer has he given that should reassure me of that? If so, why are we gleefully talking about how Yoo's & Addington's heads are exploding?
hwalsh wrote on October 18, 2007 12:03 PM:It is never about torture. It is always about what they mean by "torture" and you can be sure nothing they do ever fits the meaning. They have really brought torture down to childish word games. Since most of the wad that votes is equally chilish, it works, just enough to keep them in their comfy seats.
Jeff wrote on October 18, 2007 12:17 PM:Lwalsh,
True, but he's defining torture as something that "shocks the conscience" (among other things) which is far broader than the administration's definition of torture as that which creates intentional organ failure.
datora wrote on October 18, 2007 12:21 PM:What is your definition of 'torture' at this very moment?
Statutes? What about international treaties (otherwise known as the law of the land once signed & enacted)?
On American soil or not? How about in international waters or flying in international airspace?
By Americans?
Military or civilian or contractors?
By American puppets?
On Americans?
On non-Americans?
Mukasey didn't answer anything that means anything. Just more vile word games from another repugniKKKlan whore.
Chris Kapilla wrote on October 18, 2007 12:38 PM:blah blah blah
Buckley wrote on October 18, 2007 12:43 PM:Whatever Mukasey SAYS, look at what he DID, i.e., condone imprisoning an American indefinitely without charges. Can you say "the road to Facism"? Padilla WAS tortured on this man's say -- 3+ years in solitary confinement is torture, no if's and's or but's.
According to Bush, waterboarding, beatings, sleep deprivation, shock treatments, etc. are not torture.
I am positive we will find the document that outlines the most heinous crimes identified as "enhanced techniques."
This guy has been briefed and will look the other way.
The president still has rendition when he needs that extra kick in the teeth for his crimes.
Democrats have been quite impressive in not even forcing Bush to veto bills that stop this practice.
Anonymous wrote on October 18, 2007 3:44 PM:Nothing will stop until the 2008 election.
By that time, we will have no allies but plenty of Putin types just waiting to make fools of us.
WRONG! Bush says the SAME THING!
The whole issue is how you DEFINE TORTURE.
Utopia wrote on October 18, 2007 9:34 PM:1. As many have said it all depends on what you mean by torture. I believe today Mukasey waffled when asked if water boarding was torture.
2. Again, as many have said, there's (always) room to parse with these guys. Dollars to donuts, a few months from now Mukasey will be back before the Senate on a question of torture and he will say something to the effect, "You didn't ask me if the President could torture IN TIMES OF WAR."
3. If Bush nominated him, you can be sure he isn't going to do or say anything Bush doesn't want him to do or say. Period.