Comments (73)

Anonymous wrote on October 29, 2007 10:05 AM:

Mukasey will provide an answer that will satisfy the weasel Republicans on the committee. Let's take bets on who is the first to cave into a confirmation? Specter.

Joe Bonham wrote on October 29, 2007 10:14 AM:

Giuliani: "It depends on who does it"

Reality: "It depends on who its done TO"

Try it Rudy, you might like being waterboarded.

As for Mukasey, another puppet gets tangled up in his own strings. Who's surprised?

billjpa wrote on October 29, 2007 10:17 AM:

the reason for the muksters reluctance to clearly state that wb is torture is that if he declares that it is torture- what then is his responsibility to start investigations into those that BROKE THE LAW regarding this horror!

linda wrote on October 29, 2007 10:20 AM:

i suspect an accommodation will be worked out that will satisfy leahy/specter. defending the constitution is sooooo passe.

Jake D. wrote on October 29, 2007 10:21 AM:

Paul:

You mean "keep the emphasis OFF where they can't"? 10 seconds under cellophane is not torture.

iVoted4Nader wrote on October 29, 2007 10:22 AM:

Don't kid ourselves; He'll be voted in, but after this "theatre" making us think there is accountability in our govt.

NADER '08; TO GIVE POWER BACK TO CONGRESS

Nell wrote on October 29, 2007 10:26 AM:

It's an absolute disgrace that Senators are prepared to confirm an Attorney General who won't say that the president is not above the law.

All the furrowed-brow message-sending about waterboarding is just effing theater, and we've all had it with symbolic gestures. They're particularly disgusting on this subject when the AG's views on executive power will allow torture of all kinds to continue -- no matter what he says about any particular technique. Not to mention the vastly more common crimes that are corrupting the entire executive branch.

What kind of "leadership" is an AG who believes the president can break the law going to give to the department?

Jake D. wrote on October 29, 2007 10:28 AM:

Nell:

You won't vote for Hillary Clinton then?

anonymouse wrote on October 29, 2007 10:28 AM:

"Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil."

Let's see... the need for leadership is more important than the concept that "WE the People" do not torture...

So apparently, we would vote in a Hitler, because the country needs a leader... even if its a mass murderer...

The generations of our dead heros died for nothing...

Jake D. wrote on October 29, 2007 10:33 AM:

anonymouse:

If Hillary votes for Mukasey, will you pledge not to vote for her on November 4, 2008?

apishapa wrote on October 29, 2007 10:43 AM:

I appreciate the Senators demanding answers on the torture question. I also would appreciate even more the Senators expressing a lot more concern about an Attorney General who states that the President can pick and choose which laws he upholds. The nominee for AG stated that teh President is above the law. This is more important.

Jake of Another Stripe wrote on October 29, 2007 10:44 AM:

The waterboarding issue is a sufficient reason to oppose Mukasey, but his assertion that the president need not obey US statutes and international treaties is an independent basis to oppose him. Dodd has it right again. The AG simply cannot take the position that the President is above the law. The notion that the Constitution provides a basis for the president to fail to comply with a duly-enacted statute is preposterous.

Jane wrote on October 29, 2007 10:47 AM:

It has just dawned on Jake that Hillary is going to win.

He is trying to turn the spotlight from what the Rethug's pet Resident has done -- illegally tortured people , -- apparently putting the careers of CIA agents at risk to such a degree that MuKasey thinks their careers are of more value than restoring the rule of the law in America.

The current leading candidates of the RETHUGS -- Romney and Guiliani have essentailly been chanting more more more.

MichaelRyerson wrote on October 29, 2007 10:51 AM:

If Mukasey's wife was being waterboarded, he'd think it was torture.

JimBob wrote on October 29, 2007 10:57 AM:

When are people going to rise up (not literally, but raise their voices to a deafening roar) against the Gonzales-Rice-Mukasey style of prevarication in front of the congress who owns their a$$? The reps of the people they serve? Someone needs to be held in contempt, and quickly. Congress is losing its teeth.

Phoenix Woman wrote on October 29, 2007 10:59 AM:

Ah, yes, 'maverick' McCain. Who knows first-hand that waterboarding IS torture, yet will vote for Mukasey anyway.

Chuck wrote on October 29, 2007 11:03 AM:

If waterboarding doesn't rise to the level of torture, then is it an acceptable tool for concerned parents to discipline their kids?

Lambert Strether, Philadelphia, PA wrote on October 29, 2007 11:11 AM:

Who cares if the Justice Department lacks leadership, given what the Republicans do with it when it does have leadership?

The Bush Justice Department doing only routine prosecutions -- and not having the clout to defend the Bush from any potential indictments -- is an excellent outcome.

For all I care, they could shut Justice down until 2008 (assuming the elections take place, that a Democrat wins, and that a Democrat is allowed to take power, of course).

Failing that, Bush should just send a caretaker up as a nominee; heck, why not a Democrat? Bill Cohen, a Republican, ran DOD for Clinton, so there's a precedent.

Adrian Browne wrote on October 29, 2007 11:13 AM:

Perhaps Mukasey is hoping that his nomination will be scuttled.

Hank wrote on October 29, 2007 11:19 AM:

This would seem to be a golden opportunity for one of those Republican presidential candidates who don't think waterboarding is torture to break out of the pack. Why not volunteer to be waterboarded on national television to show that it is not torture?

What about it, Mayor Giuliani? Governor Romney? Want to put your body where your mouth is?

oniitm55 wrote on October 29, 2007 11:22 AM:

Ñêëàäñêîå îáîðóäîâàíèå

Anonymous wrote on October 29, 2007 11:28 AM:

He should be forced to "go on the record" that "waterboarding" IS or IS NOT "illegal" torture. The questions to him should be, "As the head legal official for the United States of America, in your considered professional legal opinion, do you judge "waterboarding" to be constitutionally proscribed or permissible and is the performance of "waterboarding" a legal or illegal action under the Geneva Convestion and United States law?" How can someone expected to enforce our laws not have a clear understanding of what they are and what they mean from a strictly legal perspective?

EH wrote on October 29, 2007 11:33 AM:

Lambert: I was thinking the same thing. The DOJ without leadership couldn't possibly be any worse than with the leadership they've had.

jim the cynic wrote on October 29, 2007 11:48 AM:

Mukasey's inability to be unequivocal about whether water-boarding is torture or not is in itself grounds for not voting for him.

However, more egregious is his statement that the commander in chief is above the law. That is, if the President as Commander In Chief does it then it's not against the law. His statement was almost identical to Nixon's 35 years ago. It's still wrong today. No one is above the law. Mukasey is wrong and should never be Attorney General.

g wrote on October 29, 2007 11:52 AM:

I have a question. Say waterboarding -isn't- 'torture.'

It's still assault, right, or battery or both? Is it legal to -assault- prisoners?

Honestly confused.

TheraP wrote on October 29, 2007 11:54 AM:

waterboarding is a symptom - a symptom of failure to follow the "rule of law."

It is crucial that the rule of law and deference to the rule become the measuring stick for any office.

Ask all the specific questions about particulars, such as waterboarding, but keep coming back to what is central.

It is the rule of law that is at stake in our day, and the nation's security cannot be allowed to outweigh that.

The oath of office is to the Constitution. And to my mind, if Senators fail to put a nominee's adherence to constitutionally mandated behavior first, then they betray their own oath of office. Senators must live up to their oath and they must insist any nominee do so as well - in every particular. (waterboarding being just one of those particulars)

Alguien wrote on October 29, 2007 12:02 PM:

My question is a little basic but I truly would appreciate an answer:

If as the NYT says: "Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil."

WHAT ON EARTH is the purpose of holding hearings and "pseudo-grilling" the guy if he is going to be confirmed anyway? Does this sudden "need for leadership" at the DOJ mean that the Senate should not be appear too picky with a nominee?
Or are the hearings staged just so that some Senators can show-off in front of the cameras?

Juvenal was so right:
BREAD & CIRCUS is what people want.
And we've been getting plenty of the latter, lately!

Dennis wrote on October 29, 2007 12:08 PM:

Mukasey's wiggling around the question is typical of politicians; they don't want to be seen as compromising their ethics, but they soooooo... want to be elected....

You don't have to be a blind conservative not to see it, just an ignorant one to deny it.

Remembering Water Torture in VietNam wrote on October 29, 2007 12:10 PM:

This questioning of Judge Mukasey brings back a memory of news video cuts on one of the networks showing ARVN soldiers, watched by American GI's, questioning "suspected Viet Cong" by pouring water over their upturned and held-n-place faces, with or without a cloth covering. This was after 1970 but before the war ended. Could some of the DOJ hesitance to outlaw this technique comes from historical context? If so, should it?

jimijazz wrote on October 29, 2007 12:13 PM:

Like I said before his nomination should be voted down. It sure was a quick change from his first day of testimony to the second day where he couldn't disguise his mafioso-like demeanor so well.

SB wrote on October 29, 2007 12:16 PM:

"10 seconds under cellophane in not torture"

Jake D, at this site one either characterizes things correctly or one does not comment. Putting someone under cellophane for ten seconds and doing nothing else would obviously not be waterboarding, stupid.

Abadabba wrote on October 29, 2007 12:21 PM:

Hey, I thought the Constitution was a living document? You know, everything varies with the times and circumstances. Why can't the constitutionality of waterboarding be the same?

By the way, exactly what provision of the CONSTITUTION defines and prohibits torture anyway? My copy does not have a torture clause. The federal criminal code does that, but not (so far as I am aware) the Constitution.

bp wrote on October 29, 2007 12:27 PM:

When push comes to shove the tag team of Leahy-Specter will cave.

Jane wrote on October 29, 2007 12:29 PM:

Unfortunately, the problem isn't that the JOD needs leadership: the problem is that the interim leadership is bad.

So the questions are:

1. How much worse will JOD's actions been under the current interim than if MuKasey is confirmed?

2. Is that difference great enough to counterbalance the damage done by confirming someone who has acknowledged a view of the law which places the President above the laws passed by Congress and who prefers to protect the careers of some CIA torturers rather than acknowledge that waterboarding is torture. (What are the chances that Bush pardons these people on the way out the door anyway?)

Mukasey should not pass the committee.

just joe wrote on October 29, 2007 12:33 PM:

"...when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial..."

An AG who doesn't want to get anyone in trouble by expressing his opinion?

Bush got a protector who won't do anything that might allow Bush to be put in jeopardy.
Operatives using the waterboarding technique and other forms of torture should be put in jail...but this AG doesn't want to risk that.
Something is very wrong with these people. Are we to accept that we can't stop our president from torturing people?
How do we get an AG to understand he doesn't work for the president, he's only nominated by him, approved by the senate to defend the constitution against all enemies, but mostly domestic enemies like this administration. It's the lesser of two evils again...but still the bottom of the barrel.

phred wrote on October 29, 2007 12:34 PM:

Unfortunately the problem isn't just that DoJ needs leadership: the problem is Congress needs leadership. Or at least reading glasses so they can brush up on the Constitution -- a document they clearly have never read.

paul wrote on October 29, 2007 12:52 PM:

I almost feel sorry for Mukasey. He's got to know that if he tells the committee waterboarding is torture his nomination will be withdrawn before the final r is out of his mouth.

Of course, that's his problem for stepping up. And meanwhile, we have Keisler, who thinks waterboarding isn't nearly nasty enough, running the show...

Mark Richards wrote on October 29, 2007 12:57 PM:

Finding a good candidate for AG is tough. Where might there be a person with the right credential who is willing to lie? I suspect the combination is difficult to find, although the maladministration has enjoyed some recruiting success.

There is no need to fill the void on the basis of "leadership" when the real leader is the decider of all. Rather, what's needed is an appointee who will do the bidding of the maladministrator, provide the "legal" cover for its continuing crimes, and continue to destroy the true purpose of the agency: to protect and serve the people of the United States.

Presuming that the rank and file at these federal agencies are staffed with long-time career employees who are less likely to respond to political whim than they are the law, a "leader" is required only to fashion their work product as the maladministrator intends.

Mukasey should be summarily rejected and, given his odd views on the alleged power of the president to circumvent law, should be placed on a watch list.

JEP wrote on October 29, 2007 12:57 PM:

"10 seconds under cellophane is not torture."

Sure it is.

...just the threat of it is tantamount to torture and terrorism...

Jake, be a good neocon, and either accept the whole truth (under the Bush administration, WE TORTURE PEOPLE, aren't you glad you finally admitted it?) and stop drawing excremental incremental lines to justify torture.

Get real, and adjust your opinion of torture to include 10 seconds of any coercive duress.

Even the threat of such an event equals torture. Just accept that simple truth, and stop making excuses for it.

HYPOCRITES!

RWN wrote on October 29, 2007 1:05 PM:

You all are looking at the moss on the trees and not seeing the forest. America's society is starting to come to grips with the horrible costs of being a global empire. We used to call it super power status but now in the uni-polar world we are now recognized internall and externally an empire. Torture or absolute coercion by any force where we deem ourselves unaccountable to the respect and compassion for all human beings is what an empire status is all about. Interestingly the Democrats and some Republicans are coming to realize is that politically and morally better to be on the front side of this losing proposition.

Is water-boarding torture, in the simpliest definition? Let us see Merriam-Webster defines it as: anguish of body or mind(agony) b: something that causes agony or pain 2: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure 3: distortion or overrefinement of a meaning or an argument

Legal definition in the Geneva Convention: Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 1
1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

hmmm. let me see I think this government is torture.

Sully18 wrote on October 29, 2007 1:14 PM:

"Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil."--nyt

Judas priest,this is just great.You replace one sleazebag with another,more clever,cunniving sleazebag because the DOJ has "the need for leadership."If this guy passes we have indeed been sold down the river.A police state with the Keystone Cops in charge would not be as bad unless the Cops are mean and don`t know what constitutes torture.How quaint.

Seth H. wrote on October 29, 2007 1:19 PM:

While I certainly can't say I appreciate his perspective on the waterboarding issue (naturally), it's worth considering the alternative. It seems to me that the alternative, should we reject Mukasey, is the Bush administration shrugging their shoulders and nominating someone who will lie their way into congressional acceptance. I'd much rather have an honest man who has opinions with which I disagree than a dishonest alternative, regardless of what they claim.

biggerbox wrote on October 29, 2007 1:22 PM:

That quote from Mukasey blows my mind. Is he really saying that he thinks it would be irresponsible for him to say he thinks a particular behavior is a crime because people might be using it, and they might be fired or jailed?

Isn't that like, the point?

Suppose we were talking not about something esoteric like waterboarding and instead about shooting bound and gagged suspects in the head. Would it be 'irresponsible' for the AG nominee to take a position on shooting someone in the head, because there may be people who are doing it and who may have been 'authorized' (using some highly suspect executive-rights theory) to do it?

People are not expecting him to express his opinion so that he will be 'convivial', it is so that they can understand if the nominee for the chief law-enforcement official understands the concept of 'rule of law'. We expect our government to conform to the law, not our laws to conform to the actions of our government.

charlie wrote on October 29, 2007 1:25 PM:

Well Abadabba, The 8th amendment prohibits "cruel and unusual" punishment and waterboarding is, at least, the former and I hope its always the latter. The 5th amendment prohibits self-incrimination, and the 14th guarantees due process. All this is in our Constitution and would normally be sufficient to deter rational beings from indulging in abhorrent behavior, but if none of that seems clear enough the US ratified Convention Against Torture treaty in October 1994 and Clause 2 of the Constitution, provides that federal laws made pursuant to it and treaties made under its authority, constitute the supreme law of the land, and yes that trumps state law.

So yeah, we do prohibit torture, and that's why Mukasey has to weasel, the US is currently supporting, encouraging, and authorizing unconstitutional acts, and he knows it.

Brendan wrote on October 29, 2007 1:26 PM:

Some balls in the Senate? Responsible people standing together to turn back the President? Don't believe it for a second. The White House is negotiating with Hill republicans right now on what sort of BS answer will satisfy them and cover their asses in the next election.

TheraP wrote on October 29, 2007 1:27 PM:

Abbadaba:

In addition to forbidding "cruel and unusual punishment," the Constitution provides for laws to be passed and treaties to be made. It does not need to encompass every word or technique for men of common decency to know what is torture and to repudiate it.

LEK wrote on October 29, 2007 1:39 PM:

There is a straightforward definition of torture which can be applied in every situation, to wit, 'any action/s which when performed on the person of a captured American soldier is considered torture shall be considered to be torture when performed on the person of a captive of United States forces.'

Now, is that so hard?

Dennis wrote on October 29, 2007 1:42 PM:

biggerbox wrote on October 29, 2007 1:22 PM: That quote from Mukasey blows my mind. Is he really saying that he thinks it would be irresponsible for him to say he thinks a particular behavior is a crime because people might be using it, and they might be fired or jailed?

Isn't that like, the point?"

IT ISN'T FOR NOTHING that Bush has appointed conservatives to the Supreme Court and also to try and politicize the Department of Justice just in case, someday, he and others are charged with warcrimes - like waterboarding.

In fact, I have no doubt that in their private meetings, Bush, Roberts and Alito discussed the almost unlimited power that the president of the United States has to do whatever he pleases without accountability.

If Mukasey says waterboarding is illegal, he may one day have to back up his view by his legal authority to prosecute those guilty of allowing it.

Mukasey is hedging because he knows that. To admit it's torture means he's not a game player. To not admit it means he's no better than his predecessor.

(Contrary to popular opinion [and what we teach our children in public schools] such power IS granted to a president by the Constitution itself).

You don't have to be a blind conservative not to see it, just an ignorant one to deny it.

Dennis wrote on October 29, 2007 1:48 PM:

Please allow me to correct my statement; "(Contrary to popular opinion [and what we teach our children in public schools] such power IS granted to a president by the Constitution itself).'

What I meant to say was that the Constitution grants more unchecked power to the president than what we are traditionally brainwashed to believe.

Thanks,

Dennis

ARG in Chicago wrote on October 29, 2007 2:07 PM:

Hey, Abadabba. When people refer to Mukasey upholding the Constitution, I believe they are referencing his duty to impartially enforce the law.

Article 6 of the Constitution says that "... all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."

So if Mukasey is not willing to enforce the supremem Law of the Land, then he wouldn't be doing his duty under the Constitution.

-- ARG

ARG in Chicago wrote on October 29, 2007 2:12 PM:

And I should have added, the United States signed on to the Geneva Conventions (see RWN's post above), so they are the supreme Law of the Land.

-- ARG

moondancer wrote on October 29, 2007 2:15 PM:

Being nominated by George Bush will mean the the candidate has been vetted to comply with neocon principles. If you are looking for someone who is going to defend the bill of rights, he wont come from bushco.

I guarantee he's on board with the imperial presidency which includes the president is above the law.

Jake of Another Stripe wrote on October 29, 2007 2:21 PM:

Dennis, please identify the constitutional provisions that grant the president unchecked power, explain the limit (if any) of such power, and describe the standards by which the use of such power is to be measured. When I consider these questions, I become convinced that the president cannot be empowered to exercise undefined power tat is not subject to rational review.

SeeDee wrote on October 29, 2007 2:36 PM:

Although all the 'doubts' are now surfacing about Mukasey, perhaps, the delay in his expressing his view on torture (and waterboarding, specifically) is brought on by the Bush administration's satisfaction with the 'temporary AG' they now have.

What's his name...Kielson, or whatever...is probably just the toady Bush wants in the office as long as possible...hence the five or six-months Senate 'vetting' of, first, Mukasey, and then whoever else is offered.

Anonymous wrote on October 29, 2007 2:57 PM:

yo Abadabba, are you a slow reader, or maybe you're using a defective copy of the constitution (did dick cheney give you that copy ???)

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

that took 5 minutes at Cornell's us constitution site

what's your excuse for your gross incompetence in this thread ???

jvill wrote on October 29, 2007 3:01 PM:

If the NYTimes is right and Mukasey is gonig to get confirmed anyhow, then the Dems are doing nothing other than giving the Republicans cover to belch out a few anti-torture platitudes before falling in line and supporting another man who represents the depleting power of the congress and our constitutional order.

Look, we all know that waterboarding has been defined and prosecuted as torture for over 100 years (http://abcnews.go.com/WNT/Investigation/story?id=1356870). But we all also know that if, in response to these questions on waterboarding, Mukasey responds with baking instructions for oatmeal cookies, the Republicants on the committee will declare their "questions satisfied".

All this is doing is letting Republicants stand behind Dems and say, "yeah, we're concerning about human rights too (as long as a Democrat is leading the charge, doing well in the polls, and it doesn't affect our quickly shrinking political power)".

I'll cheer when I see this go somewhere other than another "we think we're against this until we run out of ideas and just support this lame nomination" charade.

Anonymous wrote on October 29, 2007 3:18 PM:

"Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil."

What about the need for leadership in the Congress?

TheraP wrote on October 29, 2007 3:38 PM:

How can it be constitutional - for senators - to confirm an AG, who does not insist that the law applies to everyone? Including laws against torture.

To my mind this is becoming an issue of whether or not a given Senator really respects the law and the rule of law!

Sheila Rustin wrote on October 29, 2007 3:43 PM:

When, oh when, will our Democratic leaders stop giving this corrupt administration everything it wants? Bush is despicable and our Dems are pitiful wimps. Is anybody ever going to have the courage to stand up and defend the rights of the American people?

Blue in NC wrote on October 29, 2007 4:19 PM:

This is all just bad theatre. Specter will cave in. Reid will feign mock outrage and vote to confirm. We are sooo screwed! The Democrats are the "tails" to the Republicans "heads". We are dealing here with one and the same coin. Mock opposition. Mock outrage. Mock patriotism. We are certainly putting the mock back into democracy.

Sean D. Martin wrote on October 29, 2007 4:30 PM:

"Many Democratic lawmakers say privately that he is still likely to be confirmed, given the need for leadership in the Justice Department after months of turmoil."

And, again, something bad will be done just so the Senators can claim they've done something.

Wouldn't it be better to get a person who would do a decent job, than just accept whoever comes thru the door because you have a hole to fill?

ToddinHB wrote on October 29, 2007 4:33 PM:

Check out my letter to the editor in the LA Times today about this very subject:
http://www.latimes.com/news/opinion/letters/la-le-monday29oct29,0,5235155.story

(go to the second page, second letter down)

Dennis wrote on October 29, 2007 5:20 PM:

Jake of Another Stripe wrote on October 29, 2007 2:21 PM: Dennis, please identify the constitutional provisions that grant the president unchecked power, explain the limit (if any) of such power, and describe the standards by which the use of such power is to be measured. When I consider these questions, I become convinced that the president cannot be empowered to exercise undefined power tat is not subject to rational review."

Jake of Another Stripe, it would be clear to say that except for declaring war, there is nothing in the Constitution that says Congress can keep check on the Office of the President.

It does do so, sometimes, by power of the purse and by agreeing or not agreeing to certain political appointments like ambassadors of heads of departments. But, by and large, the President can do pretty well what he damned well pleases.

In Zmagazine, Aug 7/07 there is a review of a book, "Cracks in the Constitution" by Ferdinand Lundberg (I'm sending for the book)which lays out the view I've posted - which I had quasi come to before reading this review (and I will admit here that the reviewer, Stephen Lendman, is not a totally unbiased reviewer).

Anyway, this review is on line, 24 pages, you might want to print it and then read it.

But I will restate my view that, "If Mukasey says waterboarding is illegal, he may one day have to back up his view by his legal authority to prosecute those guilty of allowing it."

And those who did it under the direction of "higher ups" "could", "might" be prosecuted. And Mukasey knows that.

v. popvli wrote on October 29, 2007 6:31 PM:

the most recent bill moyers' journal on pbs featured charles fried and frederick shwarz, who weighed in on the various illegal activities of the current administration. fried is a conservative lawyer who served as solicitor general for reagan, was a former judge of the highest court in massachusetts, and now teaches law at harvard. fried even takes a benign, almost approving view of warrantless wiretapping, provided that the warrantless part remains at the level of automated, untargeted, algorithmic searches for keywords and the like. but fried violently disagrees with torture, and condemned the secrecy with which the current administration has been shrouding these and other activities.

i'm paraphrasing so the exact quote is definitely a little off, but fried said something to the effect of "i'm not even arguing this as a legal point. i am saying that we have a moral responsibility to not torture. torture is when i look you in the eye and cause you great pain. and that destroys my humanity, and it destroys the humanity of the people i work for. at that point, it doesn't matter whether torture is legal, or that we need it to win the war on terror - we've already lost.. we've already lost what we're fighting for, if we've lost our humanity."

here's another conservative legal scholar (moyers has had a few others on his show) who goes so far as to say that the administration is conducting itself illegally. fried goes even further; he all but calls the bush administration immoral and inhuman; although he doesn't say it outright, it's very clear that he means to.

Jon wrote on October 29, 2007 7:56 PM:

"...a hedge so fine that he could call the application of a certain technique torture, while reserving judgment as to any application of that technique is torture".

Once again, Lincoln has the useful suggestion here: "Whenever I hear anyone arguing for slavery, I feel a strong impulse to see it tried on him personally."

Since Mukasey has opted for fine distinctions that hinge on particular application, he will of course be satisfied only with numerous applications. After he has experienced waterboarding say ten or twenty times, applied in various different ways, then he can tell us which of them were torture.

I'm sure as a jurist he would be satisfied with nothing less. Especially after he himself has made such a point that it would all depend, it could vary, it's hard to give a simple answer, and so on.

Ethan wrote on October 29, 2007 10:06 PM:

>>>If Mukasey's wife was being waterboarded, he'd think it was torture.

Are you kidding? He probably went right home to brush up on his 'technique'.

nrglaw wrote on October 29, 2007 11:51 PM:

Democrats should simply refuse to vote in favor of ANY Bush nominee going forward. None of them will be satisfactory, particularly at Justice.

Who cares if a new AG is not confirmed? There is an Acting AG. Let him run the place for a year or so.

Dennis wrote on October 29, 2007 11:53 PM:

Dennis--

Man, you have no idea what the hell you are talking about. Your ignorance of the relevant history is appalling.

Sheila Condit wrote on October 30, 2007 2:08 AM:

Mukasey has made at least one position crystal clear; he is prepared to kiss serious rump with "like-mindedness" on the Cheney/Bush administration worldview.
Nobody is going to snap out of this.
They've been yanking our chains and killing our young and blasting away multitudes of human beings in Iraq for so many years now.
If they had (all of them) their children and grandchildren on the line, they'd manage cloture starting tomorrow morning, for example.
It appears that they just want to stay in their Sunday best as much as possible.
And I'd disagree that Mukasey of Gonzales (well, maybe Gonzales alot more) are dissembling so much as saying it right out loud and knowing nobody will slap them down even verbally; let alone refuse to bar the nominee's appointment to office.
It's refreshing to see the Dodd's rise up to speak. It's beautiful howling at the moon.

JNagarya wrote on October 30, 2007 9:50 AM:

Jake D. wrote on October 29, 2007 10:21 AM:
Paul:

You mean "keep the emphasis OFF where they can't"? 10 seconds under cellophane is not torture.

Pay attention, anti-Constitutionalist/anti-American:

Torture is defined in and prohibied by both US Federal law and international law. That definition and prohibition includes waterboarding; length of time of the waterboarding is irrelevant: it is illegal, illegal, illegal. And as the international instruments which define and prohibit torture to which the US is signatory are part of the law of the land -- the law of the land being the Constitution -- torture cannot be made legal by Congress, by the Executive, or even by h of those with the approval of the Judiciary. The Constitution expessly stipulates the only means by which it can be altered: amendment by 2/3rds of the states.

But altering the Constitution in that regard would not change international law, or the application of it to the US: torture would remain a war crime prohibited by international law to which the US is as subject as every other nation on the planet.

But we already knew you are a flat-out liar against the rule of law who will tell any lie in effort to advance the anti-Americanism you represent and embody.

It's past due your being permanently barred from civil contexts and discussions, beginning with permanent barring from TPM; you have nothing to offer but intellectual dishonesty by means of which you articulate your moral depravity.

Jake of Another Stripe wrote on October 30, 2007 9:52 AM:

Dennis-

Thanks for your reply. Isn't the role of the executive inherently limited to implementing the laws passed by Congress? This seems clear when you take into account the following power expressly granted to Congress: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Art. I, Sec. 8. If the president can ignore laws made by Congress, what does that provision mean?

JNagarya wrote on October 30, 2007 9:59 AM:

Abadabba wrote on October 29, 2007 12:21 PM:
Hey, I thought the Constitution was a living document? You know, everything varies with the times and circumstances. Why can't the constitutionality of waterboarding be the same?

By the way, exactly what provision of the CONSTITUTION defines and prohibits torture anyway? My copy does not have a torture clause. The federal criminal code does that, but not (so far as I am aware) the Constitution.

Does the phrase "cruel and unusual punishment" not come to mind?

Law 101: Constitutions are implemented by means of statutes. That clause is implemented in the Federal prohibition against torture -- which happens to include as severest penalty for doing so: execution.

jimijazz wrote on October 30, 2007 10:10 AM:

The key word there is leadership. This guy is not going to give the DOJ leadership. Mukasey will give more of the same- and then some.