Comments (116)

JJHunsecker wrote on November 1, 2007 10:36 AM:

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.

phred wrote on November 1, 2007 10:44 AM:

I was under the impression that the argument that one was "only following orders" did not fly at Nuremburg. Why is it tolerated here?

Legal guy wrote on November 1, 2007 10:48 AM:

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.

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phred wrote on November 1, 2007 11:07 AM:

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.

phred wrote on November 1, 2007 11:09 AM:

And I forgot to add to that last post, I still think the immunity from prosecution of the individuals who conducted torture is still a completely bogus argument in light of Nuremburg. I'll admit it may be legally correct at the moment, but that too, should be overturned by the Supreme Court.

Troll Patrol wrote on November 1, 2007 11:09 AM:

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.

TheraP wrote on November 1, 2007 11:11 AM:

There CAN'T be immunity from prosecution at the World Court, for sure!

I agree with phred. But thank goodness for international law!

iVoted4Nader wrote on November 1, 2007 11:21 AM:

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."

Legal guy wrote on November 1, 2007 11:33 AM:

Ok, here's some detail on at least some of the immunity. In the 2005 Detainee Treatment Act, Congress provided that in any case arising out of interrogating terrorist suspects, it shall be a defense that the person "did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful." The kicker comes in the next sentence: "Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

So reliance on John Yoo's memos would be an important, though not complete defense to a prosecution.

This provision of the DTA, however, was limited to those engaged in "in specific operational practices" That seems to limit its reach to the people actually conducting interrogation, not the higher-ups who authorized them or the lawyers who wrote the opinions justifying them.

Now on to the Military Commissions Act of 2006. That Act extended this section of the DTA to "any criminal prosecution" under the War Crimes Act for violations of Common Article 3 of the Geneva Conventions. That article is the one the Supreme Court held, over great objection by the Bush administration, applied to war-on-terror detainees.

One could read "any prosecution" to extend the "good faith" defense to higher-ups; that is, expanding its scope beyond the interrogators themselves. I don't have time to check further into what Congress intended with this section, so I'd be interested in any comments.

anonymouse wrote on November 1, 2007 11:44 AM:

"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

hoppy wrote on November 1, 2007 11:52 AM:

The one person in jeopardy if Mukasey acknowledges that water boarding is torture is G.W.Bush. Mukasey would be providing the smoking gun for impeachment to succeed. The Geneva Conventions are part of US law and violations of them are criminal acts. Bush authorized the use of water boarding. So, to avoid an impeachment, which is the primary goal of any Bush appointee, Mukasey will not ever acknowledge that anything done by this administrations was illegal.

Who would ever be dumb enough after 7 years of this administration to think a Bush appointee could be honest?

brian wrote on November 1, 2007 11:57 AM:

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 ...

gwpriester wrote on November 1, 2007 11:57 AM:

Maybe Bush and company should have thought about this before they gave the green light to torture?

Tejas Mick wrote on November 1, 2007 12:03 PM:

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.

P J Evans wrote on November 1, 2007 12:03 PM:

So Mukasey and Congress are going to continue to ignore precedent (the post-WW2 war crimes trials) *and* the Geneva conventions which we signed and which, under the Constitution, have the full force of law?

Can we impeach or at least demand the resignations of these people?

gwpriester wrote on November 1, 2007 12:06 PM:

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.

Notrol wrote on November 1, 2007 12:09 PM:

Here's what I don't understand-

Why can't Mukasey say that as of his swearing in date, the policy going forward is that waterboarding WILL be considered torture and WILL not be part of the interrogation "toolkit"?

This government is good at stifling legal suits when they need to. I doubt if any could find there way through the judicial branch if the consequences were that an ex-president (by then) would be named in a suit that could amount to criminal charges and a pardon. After all, this isn't anything really important, like a blow-job......

r€nato wrote on November 1, 2007 12:12 PM:

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!

owenz wrote on November 1, 2007 12:12 PM:

An interesting discussion, to be sure, what who are we kidding? There is no way Mukasey is not approved if he gets to the full senate. Zero. Zilch. Nada.

The Republicans will vote unanimously in his favor (even McCain) and there's no way several "moderate" Democrats don't do the same. Moreover, there's no way Democrats will filibuster his nomination if they fall short of 50. Stop me if you think I'm wrong.

What we're watching right now is a sophisticated Kabuki dance whereby guys like Senator Whitehouse get to look tough for resisting Mukasey, but the Democrats ultimately let him through. The Dems are terrified the next nominee will be even worse, and being the craven, fear-soaked milktoasts that they are, they'll find a way for Mukasey to get in.

phred wrote on November 1, 2007 12:13 PM:

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.

theswan wrote on November 1, 2007 12:13 PM:

With the argument that he does not want to put people in legal jeopardy, I conclude that with his confirmation, Congress and by extention the People are looking for someone that supports Bush's torture policy.

Mike wrote on November 1, 2007 12:14 PM:

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

gregor wrote on November 1, 2007 12:16 PM:

A post above suggests a quite repugnant course of action to call these guy's bluff.

Waterboard a domestic animal in public and invite the police to arrest you and charge you with a crime.

Anonymous wrote on November 1, 2007 12:16 PM:

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?

NCSteve wrote on November 1, 2007 12:21 PM:

In one sense, the "pandora's box" is merely political rather than legal. If we're scared of people who committed criminal acts under orders will be prosecuted in U.S. courts, then Bush can fix that in fifteen minutes. All he has to do is sign pardons. The political problem is that the list of people he'd have to pardon would go very high (Cheney, Addington, Ashcroft, Gonzalez, John Yoo and God knows who else) and the political price would be stiff. At this point, though, its not like there's any support left for them to lose. The ones who still support them will applaud loudly and there's no chance that this Congress will impeach him even after this.

The bigger political problem is that the people pardoned, and possibly Bush himself, would inevitably be indicted for war crimes in countries all over the world, some of which we have extradition treaties with.

The only real legal problem would be that all of them would be forever after be unable to travel to a foreign country for fear of being grabbed up and extradited to a country where they've been indicted. And, of course, they're probably also paranoid that some future Democratic administration would agree to extradition.

Milton Wiltmellow wrote on November 1, 2007 12:28 PM:

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.

TJ wrote on November 1, 2007 12:33 PM:

There will be an accounting for those involved in waterboarding and other forms of torture. The question is when that process will begin. The swamp will be drained, and the DOJ cannot prevent it. We can already see that process begin with Rumsfeld's trouble evading legal process in Paris last week. I doubt that even the inevitable immunity grants Bush will be handing out at the end of his presidency will bar foreign government action. See what happened to former president Pinochet in Spain.

Allsburg wrote on November 1, 2007 12:35 PM:

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.

Thrackazog wrote on November 1, 2007 12:37 PM:

This is naive, pie-in-the-sky daydreaming, but...

If a honorable Dem takes the WH and/or there's enough gumption in Congress after the '08 elections, what are the chances of the gov't handing these scumbags to The Hague to be prosecuted for crimes against humanity? Any chance Darth Dickey could be moved from his undisclosed secure location with a safe full of "classified" documents to a cozy jail cell during a Netherlands winter with only a toidy for company?

Randall wrote on November 1, 2007 12:41 PM:

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.

DBH wrote on November 1, 2007 12:46 PM:

I think the International Human Rights law is another (more important) twist. It currently allows a country to capture, try, and presecute someone for human rights violations, but ONLY if their home country does not have adequate judicial systems for doing so itself. There's an issue here that if Mukasey says it IS torture, but it never practically gets prosecuted, then in ANY country around the world which recognizes the Conventions, a person could be captured and tried under international law. Since that law does call waterboarding cruel and inhuman (although not quite torture yet), then in essence saying it is torture in the US and not prosecuting will open these people around the world to prosecution.

dfong63 wrote on November 1, 2007 12:49 PM:

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.

Ellen wrote on November 1, 2007 12:50 PM:

So, what is the real reason none of these people will ever be prosecuted?

Because in order to have the kind of government we would need to bring justice against these crimes against humanity we would need people with extreme beliefs. Sure, our Congressmen (the smarter ones) regret these unfortunate incidents, and they will never, ever have the courage or personal fortitude to get out their legal machetes and hack down the overgrown understory of ideological fanaticism that lead us to where we are now. We're too civilized, you know, to actually admit that we tacitly condoned barbarism.

It's a shame really, but it will take years after we are all dead and buried (if then) for anyone to actually call a spade a spade, and torture torture. We may go so far as to canonize GW Bush (which is what he is banking on) because we simply cannot admit our culpability in his government. Where are the daily protests? Where are the people marching in the streets to put an end to his banal evil?

And so, sadly, are we all to blame.

K. R Cook wrote on November 1, 2007 12:56 PM:

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.

gtash wrote on November 1, 2007 12:59 PM:

I agree with Randall. It is established that waterboarding is a crime. Mukasey naturally knows this as a jurist and particularly one who prepped for a nomination to AG. His obfuscations and diversions are transparently political and have nothing whatever to do with law or statute, and everything to do with shielding the Administration. My believe is that the President will just pardon it all away upon leaving office if he thinks any firewalls are going to be breached, and the Mukasey nomination is being used only to bash the Dems and rattle the citizens. Mukasey is another stooge and I agree if we haven't all realized Bush typically appoints finger-puppets (middle-finger puppets)after 6 yrs, then we haven't been awake.

Assume Bush pardons torturers in some blanket way. Where are we in International law?

notKeith wrote on November 1, 2007 1:01 PM:

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.

Mike in Denmark wrote on November 1, 2007 1:01 PM:

Atrios made this point 10 days ago:http://atrios.blogspot.com/2007_10_21_archive.html#5518137284305504076

JMOHR wrote on November 1, 2007 1:03 PM:

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.

Jeff R. wrote on November 1, 2007 1:06 PM:

phred asks:

I was under the impression that the argument that one was "only following orders" did not fly at Nuremburg. Why is it tolerated here?

Here's the relevant part of the Nueremberg judgment:
http://www.mazal.org/archive/nmt/04/NMT04-T0470.htm

My (non-lawyerly) reading of it is in order for a superior orders defense to succeed, the defendants must show 1) excusable ignorance that the orders were illegal, or 2) the orders were obeyed under duress. By duress, the judgment meant there would be serious, immediate consequences for disobeying the order, i.e. death. The court found neither.

My (again non-lawyerly) opinion the CIA operatives would be safe from conviction if they had good faith reasons to believe their acts were legal. I would think that waterboarding would obviously be torture (and thus illegal), but we have the vice president going around saying it isn't and the attorney general nominate not saying one way or another, I guess someone could in good faith believe it's not.

Camilo Wilson wrote on November 1, 2007 1:06 PM:

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.

gtash wrote on November 1, 2007 1:07 PM:

I think Poppy's Paraguayan Plantation surrounded by Blackwater hirelings is the last refuge of George Bush---and his little dog Cheney too.

phil james wrote on November 1, 2007 1:08 PM:

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?

Dan wrote on November 1, 2007 1:10 PM:

When people commit crimes they are putting themselves in danger of prosecution for those crimes.

Those who talk about those crimes, honestly and openly, are protecting the rule of law and society as a whole. Those who cover up those crimes are morally, and perhaps legally, guilty as well.

Why is refusing to stand up for the Constitution excusable, just because some criminals might be prosecuted if he does?

charlie wrote on November 1, 2007 1:15 PM:

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.

phred wrote on November 1, 2007 1:17 PM:

Jeff R.

Thanks for the link. IANAL either, but I differ with your point of view that a person in good faith could believe that waterboarding (and I would include other forms of torture as well) is not illegal. No matter what Cheney, Gonzo, or anyone else said. As they explain in your link, a direct order from Cheney to kill someone does not justify following that order. Prohibitions on cruel treatment are common knowledge making all forms of torture indefensible in our society.

Mr. Sifter wrote on November 1, 2007 1:26 PM:

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

TheraP wrote on November 1, 2007 1:43 PM:

This thread represents the best of tpm and I just want to thank all those posting today, and those reading as well. It heartens me tremendously to see this group working together, wrestling with the issues, concluding that the Constitution must be restored and the rule of law must play out - no matter who gets hauled into court.

Thank you, Josh, for this site!

Tod Allen wrote on November 1, 2007 1:54 PM:

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)

Tom Allen wrote on November 1, 2007 2:03 PM:

Wow. hyprocrisy sure makes these guys squirm.Idealists live in plastic bubbles.

Mirror, Mirror on the Wall
On torture and executive power, Democrats sing a different tune when the president is … a Democrat.

By Andrew C. McCarthy

So Judge Mukasey has essentially said that waterboarding might be torture and would, in any event, be illegal in all but the most dire emergencies. Senator Clinton, to the contrary, has said a president could order not just waterboarding but torture, despite a congressional statute and treaty obligations that brook no exceptions. Yet, Democrats are questioning Mukasey’s fitness even as they trip over themselves to hop aboard Clinton’s bandwagon.

Naturally, at the front of that bandwagon they will find former President Bill Clinton. He, too, weighed in last October, contending that a president has the power to order torture or waterboarding in a dire emergency. As Harvard Law Professor Alan Dershowitz recounted in a New York Sun op-ed, upon being asked whether the president needs “the option of authorizing torture in an extreme case,” President Clinton responded (italics are mine):

Look, if the president needed an option, there’s all sorts of things they can do. Let’s take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal. We have a system of laws here where nobody should be above the law, and you don’t need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.

Supdog wrote on November 1, 2007 2:03 PM:

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.

moondancer wrote on November 1, 2007 2:12 PM:

Just so there is no ambiguity. The US has convicted war criminals for waterboarding.

United States vs. Sawada etal War Crimes Tribunal at Shanghai 1946
Testimony and conviction for specifically waterboarding(called water "treatment") the airman captured by the Japanese army that survived the Dolittle raid to get them to sign confessions. The testimony is first hand and follows the current description of the torture exactly.

I got this from a contributer at Media Matters. And have verified it at UPenn law library.

Brain Hertz wrote on November 1, 2007 2:27 PM:

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?

Supdog wrote on November 1, 2007 2:36 PM:

Sawada...I believe that's what I was thinking of.
Thanks, moondancer.

Via
http://www.columbia.edu/cu/jtl/vol_45_2_files/45_2_wallach.html

"Historical analysis demonstrates that U.S. courts have consistently held that artificial drowning interrogation is torture, which, by its nature, violates U.S. statutory prohibitions."

urbino wrote on November 1, 2007 2:41 PM:

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.

Tom Allen wrote on November 1, 2007 2:46 PM:

Brian Hertz, why did Bill and Hillary both think last year(Oct.) that torture and or waterboarding were acceptable in dire situations? They seem to think it was in an Executive's power/mandate.

Steve in Seattle wrote on November 1, 2007 2:52 PM:

I am amazed that anyone can argue with a straight face that; waterboarding is not torture; is not cruel; does not constitute a crime against humanity; and is not a war crime. As with all war crimes following orders is not a defense no matter if the orders come from the leader of a nation state.

Until recently it was a given that the United States considers waterboarding torture and would bring to trial and severely punish anyone who authorized or engaged in such conduct. This has been the United States policy for well over a half a century.

I think we should make it clear that it is shameful to publically advocate or approve this type of torture. Ethics teaches us that an evil act is evil regardless of who it is done to. I also reject the proposition that the ends justify the means – for the simple reason that there are no ends – our actions are only means.

There is no moral difference between those who would torture a terrorist to prevent an attack on innocent lives and those that would kill a two year old child to use the child’s body parts to save the lives of several other children. Both perform an evil act based on the justification that it will benefit the many.

I believe the issue of approval of Mukasey is wrongly framed. Mukasey should not be confirmed unless he demonstrates that he is willing to aggressively investigate, bring to trial and appropriately punish anyone who authorized or participated in any form of torture including waterboarding.

Tod Allen wrote on November 1, 2007 3:11 PM:

"There is no moral difference between those who would torture a terrorist to prevent an attack on innocent lives and those that would kill a two year old [or 8 month old fetus, 3 month old?...]child to use the child’s body parts to save the lives of several other children. Both perform an evil act based on the justification that it will benefit the many."

There are lot of tough choices to make here.I am beggining to agree with your view on life on an international level. However leaders of nation-states have the mandate to put the preservation of their citizens above those of all others.Perhaps this is why many see the nation-state system as so archaic.

moondancer wrote on November 1, 2007 3:19 PM:

Right Steve. I have always believed that no matter what, America stood for certain principles. The rights of habeus corpus, the belief that we are better than using torture were among them. That these pricks have taken that away from us is unforgivable. We can pull back from this criminal behavior, but we as citizens will never again have that certainty that we are better than that. And neither will the rest of the world.

nrglaw wrote on November 1, 2007 3:38 PM:

I have a fairly simple take on all this.

First, the question of whether anyone will be prosecuted if Mukasey states the obvious that waterboarding is torture is a red herring. These people are not going to be prosecuted, even though they should have had the moral strength to avoid the practice as inhumane. Just forget that issue. Whatever Mukasey says on the subject is not going to change the practical immunity of these folks.

Second, the only real issue is whether Democratic senators on the SJC would even contemplate giving Mukasey a pass nothwithstanding all this bobbing and weaving at the direction of you-know-who. For there to be any doubt at this time how Schumer will vote on this (after signing the now-famous letter to Mukasey) is a disgrace.

Third, maybe the centrists and right-of-centrists are willing to let Mukasey go by on this one, on the dubious theories about "leadership" being needed at Justice or that Mukasey is the best we can get. But people on the left know better, I hope, and we vote and we contribute. I usually do both--but if Mukasey goes by, not one nickel from me. I already tossed a solicitation from the Michigan Dem Party over this issue.

Don't beg. Don't scream. Just put away your checkbook and make sure that each and every Democratic senator knows it.

Enoch Root wrote on November 1, 2007 3:39 PM:

You know.... If he *says* that waterboarding is actually torture (like everybody knows it is), then we want him as AG, don't we? Because then there is a basis for further legal action against the administration, and a post-oval-office Bush.

Bill in Seattle wrote on November 1, 2007 4:01 PM:

If Mukasey gets voted in, we should all vote for Kucinich!

www.dennis4president.com/

Jeff R. wrote on November 1, 2007 4:10 PM:

phred:

Just to be clear: I think it would be difficult to obtain a conviction against one of the CIA operatives because the provision in the law about the OLC opinion may throw enough reasonable doubt that the operative did in fact know the acts were illegal. My opinion is that waterboarding is self evidently torture.

In the Nueremberg judgment I linked to, the judge gave an example where junior submarine officers fired on a lifeboat. Their defense was the commanding officer ordered them to do it. The superior order defense was rejected since they should have know that it was a war crime. They could not fall back on a defense of saying their captain had an opinion from the Kriegsmarine legal office saying it was legal to fire on non-combatants in life boats.

Fractal wrote on November 1, 2007 4:52 PM:

This is a critically-important thread. I hope TPM can resurrect it near the top of the home page after the evening news.

Since this thread started around 10 AM Nov. first, at least two additional Senate Judiciary Dems have announced their opposition to Mukasey (Kerry & Kennedy). The legal & historical analysis in some of the postings is expert and damning. The consensus that the U.S. is tolerating war crimes by senior executive & military/intelligence leadership allows no alternative other than criminal prosecutions. Three GOP Senators (McCain, Warner & Lindsay Graham) have publicly demanded that Mukasey denounce waterboarding as illegal AFTER he is confirmed.

The criminal jeopardy for those guilty of waterboarding war crimes exists whether Mukasey is confirmed or not, and regardless of whether or when he denounces waterboarding as illegal. His "pronouncements" do not "create" the criminal jeopardy, the Geneva Conventions, U.S. statutes, and well-settled case law created that legal jeopardy BEFORE U.S. government persons approved and conducted waterboarding. There was no reasonable good faith basis for any person to form any impression that waterboarding could be "approved" by anyone, regardless of rank or title.

Prosecution of war crimes cannot be held in abeyance on any theory that the current war is somehow more dangerous or more of a threat to the nation than any prior war (engagement, police action, incursion, occupation, etc.)

Perhaps the Senate should insist that Mukasey answer "yes" to only two questions in order to be confirmed: "Will you prosecute war crimes by U.S. government persons, no matter who committed them?" And, "Will you commence investigations and prosecutions of war crimes as soon as you are confirmed, or appoint a Special Counsel to do so as soon as you are confirmed?"

Fractal wrote on November 1, 2007 4:57 PM:

And, yes, I am a lawyer, experienced in constitutional law litigation. I disagree with nrglaw's assumption that no one will be prosecuted for war crimes? What is the basis for that claim?

v. popvli wrote on November 1, 2007 5:06 PM:

this point was elucidated by some guests of bill moyers on his weekly pbs show.

there have been a few examples of presidents acting unconstitutionally or against the statutes of congress in our history. the emancipation proclamation was unconstitutional - it may have been morally the right thing, but it was simply unconstitutional. does anyone remember the clause that allows southern states to have population-based representation in the house by summing the total number of whites, and 3/5 the number of african slaves? also, fdr violated the neutrality act by lend-leasing to britain prior to dec. 1941. they needed our warships to fight the nazis.

these leaders saw that theirs was a just and moral cause, and their actions were considered great and right by historians. luckily too, lincoln could've been hanged had the south won. however, their potentially unconstitutional acts were performed openly, with the full knowledge of congress and the public in an ongoing, frank dialogue.
---beginning of original thought by poster--
with torture, i can agree that it is illegal, unconstituional, and morally repugnant. i can also see how, in the case of a dire emergency (say, on sept. 10, 2001), such unconstitutional, illegal actions might be perceived as great and right by historians down the line. the problem for bush is that he's not doing these things openly and with a dialogue between him and congress and the public. he's also not told us of the imminent "dire emergency" that he is trying to prevent in each case where torture is applied. transparency is absolutely necessary if you have a good, morally defensible reason to violate a law. anything less than complete transparency on such a critical issue is unamerican.

ARG in Chicago wrote on November 1, 2007 5:16 PM:

I agree that this is an amazing and important thread, which has clearly attracted some very knowledgeable posters (beyond the "regulars" I've seen here before).

Perhaps this is part of a tipping point on this issue. And it goes beyond Mukasey's nomination, IMHO. Suppose the Senate does the right thing and rejects Mukasey. Then the next nominee has the exact same problem, with the exact same result (as others have pointed out).

So you can't get past this problem. Unless you're willing to consider impeachment, which (as I've said here many times before) is the only path to restoring the rule of law at home and faith in our nation abroad.

Maybe some people taking the time to read through this entire thread will see now why it DOES make sense to impeach. (I can dream, can't I?)

-- ARG

Fractal wrote on November 1, 2007 5:17 PM:

With a H/T to Firedoglak for the link, and a warning that the following material is NOT suitable for children and is barely readable for adults, please consider the analysis and conclusions posted yesterday by a former military interrogation expert and prisoner-of-war survival trainer that "waterboarding is torture. Period."

http://smallwarsjournal.com/blog/2007/10/waterboarding-is-torture-perio/

Reading what actually happens during waterboarding will turn your stomach, literally. We as a nation must seize this moment to demand that our Senate protect our national honor by denouncing any nominee who would not call waterboarding illegal and who would not ensure criminal prosecutions of any person who committed waterboarding of anyone.

Princetonlaw wrote on November 1, 2007 5:20 PM:

"I can also see how, in the case of a dire emergency (say, on sept. 10, 2001), such unconstitutional, illegal actions might be perceived as great and right by historians down the line. the problem for bush is that he's not doing these things openly and with a dialogue between him and congress and the public." end of quote by popvli

beggining of post-Do you not see the obvious impossibility of publicly discoursing an imminent threat to millions of people?A dirty nuclear weapon that is understood to go off in 48 hours does not allow the public discourse between branches ,regardless of what constitutional constraints you may imagine.

ARG in Chicago wrote on November 1, 2007 5:21 PM:

Wow. Excellent posts, Fractal. Thanks for that link.

-- ARG

urbino wrote on November 1, 2007 5:37 PM:

Steve in Seattle wrote on November 1, 2007 2:52 PM:

"Ethics teaches us that an evil act is evil regardless of who it is done to."

Yes, Grasshopper, but *Rudy* teaches us that it does depend on who *does* it.

[End of snark.]

Anonymous wrote on November 1, 2007 5:49 PM:

Fractal@5:17

He was on NPR this afternoon. Compelling. This guy has no axe to grind, except with the notion of torture not being torture.

raking Your muck wrote on November 1, 2007 5:54 PM:

Our friends on the Democratic side of the aisle did not want the former Attorney General to continue in office. Well, he has since resigned.

Our Democratic colleagues wanted to be consulted on whom the next Attorney General should be. Well, the Administration consulted extensively with them.

Our Democratic colleagues did not want the former Solicitor General to be nominated as Attorney General. Mr. Olson would have made an excellent choice. But the Administration did not nominate him.

Our Democratic colleagues said that if, instead, the 'President were to nominate a . . . conservative . . . like a Mike Mukasey,' he 'would get through the Senate very, very quickly.' Well, the President did not nominate someone 'like' Mike Mukasey; he nominated Mike Mukasey himself! And he received widespread acclaim for doing so.

So, Mr. President, it is apparent that the President acted in a very bi-partisan fashion.

Did our Democratic colleagues reciprocate to this act of good faith? Well, Mr. President, at this point, it's difficult to say that they have.

First, they held up the nomination for weeks before even scheduling a hearing. An action-or, more precisely, an in-action--which the Washington Post termed 'irresponsible.'

Then, despite the fact that Judge Mukasey testified for two days and answered 250 questions in the process, our Democratic colleagues asked him to answer an additional 500 written questions. By contrast, Mr. President, Attorney General Reno did not receive any written questions until after she was confirmed.

Then it took over two weeks for a markup to be scheduled. I understand that one has now been set for Tuesday of next week, and I am glad that has finally occurred.

But Mr. President it shouldn't have taken nearly this long. Months ago our Democratic colleagues told us that 'the nation needs a new Attorney General, and it can't afford to wait.'

Unfortunately, since then, we have been doing a lot of waiting and waiting and waiting. We have been waiting so long that Judge Mukasey's nomination is the longest pending Attorney General nomination in two decades.

Brain Hertz wrote on November 1, 2007 6:01 PM:

Tom Allen wrote on November 1, 2007 2:46 PM:

Brian Hertz, why did Bill and Hillary both think last year(Oct.) that torture and or waterboarding were acceptable in dire situations? They seem to think it was in an Executive's power/mandate.

I don't know. Why don't you go and ask them? And why do you think I care? Neither of them is an AG nominee. I want to know what the AG nominee thinks.

Tom Allen wrote on November 1, 2007 6:13 PM:

Brian Hertz- "Why do you think I care"

So the veiw of the future nominee for President is not pertinent? If the DNC's nominee for President has the same veiw as Mukasey's or even as Cheney, then much of this rhetoric of CHANGE is just total hype.What real value will be keeping Mukasey out if these same policies will continue after the swearing in of Jan '09.

Brain Hertz wrote on November 1, 2007 6:23 PM:

Tom,
why do you imagine that I support either Bill or Hillary for President? I don't, and one of them isn't even running.

NC Guy wrote on November 1, 2007 6:32 PM:

Arlen Specter said, “The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened.”

The fact that a United States Senator and an AG nominee would be willing to publicly make this kind of argument show just how far into the gutter the oh-so-moral Republicans have taken us.

Here's a little thought experiment: think of the case of Chester Stiles, recently busted for raping a 2 year old and videotaping it. Now imagine, hypothetically, that Stiles was part of a Bush Administration child molestation ring which had conspired to protect themselves from prosecution by getting the OLC to issue an opinion that, under Article II, child molestation laws didn't apply in this case (for some hypothetical reason -- maybe he works for Blackwater or whatever).

What do you think would be the reaction if Mukasey refused to take a position on such a hypothetical case because if he did a lot of child molesters in the Bush Administration would be at personal jeopardy? And what would be the reaction if an Arlen Specter accepted Mukasey's "logic" about the compelling need to not put the child molesters at risk?

Well, it's unacceptable if you're talking about child molesters, and it's unacceptable if you are talking about torture. Torture is as bad as, if not worse than, child molestation.

If there were a real ticking time bomb situation, no jury or Congress in the land would convict a president for breaking the law under the kind of circumstances extreme enough to justify torture. We absolutely should not write a torture exception into the law because creating such a legal exception will certainly lead to its abuse.

We have to come out of our national case of psychological denial, admit that the President and the Vice-President are war criminals, and impeach them as a matter of national hygiene.

Supdog wrote on November 1, 2007 6:36 PM:

The "ends justify the means" argument rears its head once again.

Seems to me that the ends (desired results) SHOULD justify the means (methods used to achieve desired result).

I do not see how waterboarding can be justified by any result. "dire emergency" and "ticking bombs" scenarios are not only theoretical, but subjective and alarmist, and only muddy the waters of what should be a very clear point: torture is wrong.
If the Capitol Building is nuked tomorrow, it won't be because some al Qaeda thug wasn't tortured enough.

Further, the current administration has been so occupied with veils of secrecy and doubletalk that it's impossible to know what "ends" its working towards. Seems to me torture is the refuge of the overpanicked, and, let's be clear, the sado-fascist.

That torture has become a subject of US public debate indicates -to me- that something is seriously wrong with the US national conscience.

That is all.

Mooser wrote on November 1, 2007 7:04 PM:

What it all boils down to is this: The War Party (let's call it that for convenience) has more to fear if the War On Iraq is stopped and peace, with a chance to catch our ethical breath and look at the books, breaks out, hundreds, if not thousands will be in legal jeapordy for everything from contract fraud to murder and war crimes.
On the other hand, if there's an even larger war, why they just might get away with it.
Peace (or whatever pathetic cessation of conflicts passes for it these days) threatens them much more than continued war.
So we're gonna get some good Gotterdamerung, you betcha!

moondancer wrote on November 1, 2007 7:10 PM:

rake your muck@5:54

After filtering out your sarcasm, I get your point.
The answer is simple. After seven years of breathtaking disregard for the rule of law at DOJ, A conscientious judiciary committee is trying to stop the destruction.
Yes, Mukasey answered lots of questions. But the one he didn't is important. The one he didn't answer is the one Addington told him cannot be answered in the affirmative.
If he cannot answer the question truthfully, he needs to stay retired.

Doug wrote on November 1, 2007 7:17 PM:

So, basically the Bush/Cheyney mal-Administration has been reduced to simply ensuring that the higher-ups don't go to jail?
Tell me again why impeachment is "off the table"?

v. popvli wrote on November 1, 2007 7:30 PM:

post by princetonlaw:

Do you not see the obvious impossibility of publicly discoursing an imminent threat to millions of people?A dirty nuclear weapon that is understood to go off in 48 hours does not allow the public discourse between branches ,regardless of what constitutional constraints you may imagine.

response:
has the administration produced any evidence that so-called "enhanced interrogation" has prevented another attack of the scope and magnitude of 9/11? like a dirty bomb? sorry, no such luck. if they were up front, even after the fact, about who they are "enhancedly interrogating," how they are doing it, and what information is produced, i'm sure it would be a gigantic embarassment to the fed that they are violating international law to get false confessions and poor intelligence. ala - hundreds of people at gitmo that the pentagon is trying to release. if they're to be released, i'm assuming that means they are not enemy combatants or a danger to us, or in the possession of any useful intelligence. so, if they're harmless, why won't Bush tell us how they were interrogated and what information was produced? probably because it would be an embarrassment, not because their detainment prevented umpteen more 9/11s. why would they keep secret a plot that they'd foiled by torturing someone? it would be a PR coup, total vindication of their course.

and so what if there isn't time to discuss beforehand? if time is a constraint on the ability to inform and dialogue with the other branches of government, fine. why not discuss it with them after the fact of the torture and the prevention of your hypothetical threat to millions of lives? that's at least showing a good faith effort at transparency, and letting we the people be the judge of this morally repugnant thing that was done in our names. we the people should be involved in that cost-benefit analysis, and we would demand the ability to be outraged and critical each & every time when someone is tortured unnecessarily. but has every use of "enhanced interrogation" prevented a dire emergency, like a dirty bomb? i sincerely doubt it. when forced to choose between the pain of a detainee and the health of millions of our citizens, i think morality says you have to use any means necessary. how often does that happen? (almost never in all likelihood,) but who the hell knows? because bush isn't telling (probably because he has something to hide).

nrglaw wrote on November 1, 2007 7:30 PM:

Phractal--Thanks for the response. I respected each point you made, but I concluded that noone who did the actual deed will be prosecuted for war crimes or anything else related to the waterboarding because of two factors.

First, no one in this Administration will prosecute. The reason is simply that they are, in fact, in this Administration. If they begin prosecutions, they will be ended by the White House. Nothing has changed just because Gonzalez is gone.

Second, I don't believe that prosecutors who are free to go after the waterboarders would do so. To go after the low level officers and recruits who torture when they are told to torture by their commanding officers, AND the commanders of those commanding officers tell their subordinates that the CIC says it is legal to do so, would be completely inconsistent with an overarching concern at both the Pentagon and the Supreme Court with challenges to the actions of soldiers and commanders in the field. I am not saying this is how it should be, but two years in the DOD General Counsel's office tells me that this is the practical reality of how it is.

If we want to prosecute those who are responsible for these horrors, we have to start very much further up the chain--with commanders who have a real opportunity to argue with the brigadiers and up who make and really put these decisions out into the field. We should prosecute Rumsfeld and Gates; Rice and Powell; we should prosecute the CIC and the VP in impeachment proceedings. These would be decisions that would be inarguably targeted at the responsible wrongdoers, not the pawns in the field.

The fish always stinks from the head. Prosecute the head, then, not the tip of the tail.

nrglaw

moondancer wrote on November 1, 2007 8:20 PM:

nrglaw

I agree with you on this. I don't think its about the guys in the field, its the one's who conceived and ordered it. This isn't a concept that came from the bottom up(IMO). Field guys know that waterboarding is for getting guys to sign confessions, not making them. This is some nasty cruelty that came from up above.

TheraP wrote on November 1, 2007 9:05 PM:

Summarizing here a bit:

A. There seems to be no question on this thread that torture is always wrong and that waterboarding is torture.

B. Some people still seem uncertain about whether this "wrong thing" is nevertheless useful. NO! And I commend for your reading the long comment by Anna S. near the end of Malcolm Nance's post at small wars. She just completed a dissertation on torture: Her comment together with Nance's post should settle the question.

C. The matter at hand is: Should any AG be confirmed, who refuses to clearly state that torture in the form of waterboarding is illegal and immoral, even when he knows that this form of torture has been authorized for some detainees during this administration's tenure?

D. To me the answer has two parts: First, the Oath of Office and adherence to the Constitution. And next, who constitutes the constituency of the AG?

E. The Oath of Office, the oath to "preserve, protect and defend the Constitution" - to me - would be subverted by anyone, particularly a judge, who cannot emphatically state that torture in the form of waterboarding is illegal. (This is my perspective and IANAL, but it would be like a school principal who didn't want to clearly state "child molestation is immoral and illegal" or who wanted to quibble over forms of molestation etc.)

F. The matter of the AG's constituency = We the People and the Constitution (so overlap with E). The AG is not the president's lapdog, not his amanuensis, not his protector. He is the voice of the law, irregardless of who may have broken it.

G. Not stated on this thread but important to E. All Senators take an oath of office. All are sworn to uphold the Constitution. That is their first duty. How then can they honor that oath and vote for anyone who fails to take a stand against illegal activity? Activity which shocks the conscience and constitutes cruel and unusual punishment.

To me the choice is clear: The AG must be able to state the difference between right and wrong, especially in matters that shock the conscience. The AG has a duty to the law and We the People are his constituents. Senators also have a duty to the Constitution, and it is that duty which should shape their decision on whether or not to confirm as AG someone who refuses to repudiate waterboarding-torture as illegal and immoral.

Sorry for the long post.

insidegit wrote on November 1, 2007 11:44 PM:

"... but has every use of "enhanced interrogation" prevented a dire emergency, like a dirty bomb? "

As a matter of fact the answer is yes

"Senator Clinton, to the contrary, has said a president could order not just waterboarding but torture, despite a congressional statute and treaty obligations that brook no exceptions."

"There seems to be no question on this thread that torture is always wrong and that waterboarding is torture."

The current Administration should say they will get Sen. Clinton's permission before questioning any enemy noncombatants.

Torture is wrong...and war should never happen;and terrorists should use diplomacy instead.America should make an effort to stop terrorism without torture. This really is all the AG should ever have to state.

Eastern proverb says "the fool strains the gnat and swallows the camel"

melior wrote on November 2, 2007 3:45 AM:

I predict the Pretzeldent will issue super secret classified blanket pardons to any and all intelligence agents who may have acted illegally in any way shape or form while fighting Terra.

He will also issue blanket pardons for the telecoms, Dick Cheney, Alberto Gonzalez, Tom Delay, and Barney.

Then he'll smirk and tell us all to "Suck it, heh heh."

ARG in Chicago wrote on November 2, 2007 7:42 AM:

Good summary, TheraP. And I agree with all your points.

A & B are self-evident. Even President Bush says "America doesn't torture". But, of course, he's using doublespeak.

C, D, E & F = Any nominee should be willing and able to answer this question correctly. I absolutely agree.

And G means Senators won't be doing their jobs if they don't ask this question and demand an honest answer. Very true.

Let me just add:

H. President Bush said Thursday that if the Senate rejects Mukasey on this basis, they will establish a standard that no reasonable nominee could meet -- I paraphrase, but that's close to an exact quote. In other words, President Bush demands that any/every "reasonable" nominee for AG must NOT answer this question. It is a litmus test for his nominee. He admitted as much.

This leaves the situation insoluable. To me, the clear choice is to impeach. Impeachment now -- it is the only logical way to resolve this impasse.

-- ARG

TheraP wrote on November 2, 2007 8:10 AM:

Good Morning ARG in Chicago:

Regarding your point H, I was thinking of this image last night: It's as if this administration, through its crimes, pretzel logic, and bungling has created a strange-shaped pigeon hole, into which any AG nominee must be crammed. It is a hole that does not match the Constitution. Thus, the administration has so botched the whole process here, that no self-respecting, law-upholding man of conscience can possibly "fit" that unnatural pigeon hole AND be confirmed, UNLESS the Senators themselves betray their own oaths of office.

I have long agreed that impeachment is the prescribed treatment here. I'd think of it like a "treatment." It should be tried. Like surgery, it may fail to cure the problem. But, like surgery, it would surely expose enough of the problem - so we can decide if the Constitution is fatally flawed or can be resurrected.

As I see it, the problem is not this current bush administration, but whether the nation has gone so far down a wrong path .... that we are either going off a cliff eventually - and there is no going back - or we must retrace our steps, learning every mistake and crime along the way, and find our Constitutional path once again.

teenagelobotomy wrote on November 2, 2007 8:41 AM:

You guys are so full of hot air. You realize how obstructionist and foolish Kerry and Kennedy (Talk about extreme, has been's)seem to mainstream of America.
For all this posturing it just confirms in the minds of all of us that this Congress just cares about getting even not about writing good,acceptable legislation. "Yea your right (kiss-kiss) we should impeach it should be the prescibed treatmnent" .

" But if you want money for people with minds that hate
All I can tell you is brother you have to wait"

Y'all embarass some of us Democratic voters.

Troll Patrol wrote on November 2, 2007 8:51 AM:

The comment on Nov. 2 at 8:41 both debases this inspiring thread AND demonstrates how very important (and apparently threatening) it must be - for those who do not value our constitutional process. Sad.

moondancer wrote on November 2, 2007 8:54 AM:

One last comment on waterboarding. The "shorter" explanation:

It's effective in getting someone to sign a confession, but not in making one.

Bumper Sticker wrote on November 2, 2007 9:06 AM:

Torture - Breaks People and Institutions

Wilderwood wrote on November 2, 2007 9:12 AM:

Of candidates running, it's intenresting that Hillary has been the most unambiguously outspoken, against torture. Even to the point of making her husband toe the line. So the question becomes, will she prosecute the perpetrators?

notherptof veiw wrote on November 2, 2007 10:16 AM:

Compared to her competitors for the Democratic presidential nomination, she (Clinton)has often been vague, relying on broad condemnations of "torture." As Obama noted during the debate, she has changed positions on her support for harsh interrogation in a ticking-time-bomb scenario. And she has not addressed the ethics of the CIA rendition program as it existed under her husband's administration. (Salon)

Salon interviewed five of the retired military leaders who met with Clinton at Pierce Law School in April, including Guter and retired Army Lt. Gen. Robert Gard. And they all agreed they would much prefer that all of the presidential candidates directly address the CIA activities rather than simply condemn torture.

"Our programs are as lawful as they are valuable," said General Michael Hayden

"It had to be consistent with our broad values as a nation. And so it could not stand on a single pillar of a definition of lawfulness. It had to have both policy and political legs."

The agency had intense discussions with both Congress and the Justice Department to determine exactly where the legal lines were drawn, and there is an officer present at all times to make sure the interrogation does not cross the line, he said.

"When we conduct interrogations there are officers who are responsible solely for the physical and well being of the detainee and have the authority to stop what is going on."

The CIA has generated thousands of intelligence reports from the "fewer than 100 hardened terrorists" detained since 2002, he said.

"These rendition, detention, and interrogation programs are small, carefully run operations," he said, adding that less than a third of the detainees "have required any special methods of questioning."

moondancer wrote on November 2, 2007 12:07 PM:

notherptofveiw

So whats your point? A bush appointee tells you its ok, so its ok. He tells you its just a small number of people that dont have the right of habeus corpus, so its OK? He tells you theres oversight, although only by participants of said program, so its OK? They tell you this is producing massive quantities of "reports", but have nothing to show the public?
I hope you excuse me if I'm a tad bit skeptical of the lying, criminal administration thats telling me this.
Assuming your an adult, how many times does somebody have to lie to you before you start doubting their word?

thedeanpeople wrote on November 2, 2007 12:10 PM:

OK, just be quiet and listen.

----
"These rendition, detention, and interrogation programs are small, carefully run operations," Hayden said, adding that less than a third of the detainees "have required any special methods of questioning."
----

Now, everyone knows guilty talk when they hear it, right? If this were legal and/or moral, there would be no need to publicly minimize it would there?

This is because torture is virtually irrelevant. Common Article 3 -- i.e., US CODE Title 18,2441 -- requires that people be treated "humanely." There are no special exceptions for interrogators.

There is no legalism at play here. The treaty obligation and federal law have been forged over time by generations of Americans. No current Congress can offer a pass. No presidential pardon (or counsel, or "interpretive" EO) could be free of conspiratorial liability.

And while approving Mukasey is clearly (re)approving torture -- his non-answer being as loud and clear as any answer would be -- what happens now is also irrelevant. The crimes have long since been committed (and adjudicated in Hamdan). They have been "defended" under the "Unitary" rationalization as lawful and non-impeachable.

All that is left is to start behaving like civilized American patriots or to remain complicit with the contemptible, guilt-ridden war criminals.

That's not so hard, is it?

Failure to impeach (then prosecute) is complicity -- approval -- exoneration for the regime. We allow it at our, and our children's, peril.

--

notherptofveiw wrote on November 2, 2007 1:14 PM:

Dancer
"excuse me if I'm a tad bit skeptical of the lying, criminal administration thats telling me this."
No actually you are not excused,you are being presumptive,and are rushing to judgement.

Dancer
"They tell you this is producing massive quantities of "reports", but have nothing to show the public?"
If you had the right clearance you could see it.We are at war by the way.

Regarding Bush's July 20th EO

Until the courts have issued an opinion on the interpretation matter at hand, isn't it always within the authority of the Executive?

Obviously, someone must make a judgment about what any given treaty says if it is to be enforced. I would argue this belongs to the Executive, until the Judiciary rules they are incorrect.

Vote yes for Mulkasey, but torture no more (assuming as some of do that it occured).

helpmesee wrote on November 2, 2007 1:39 PM:

Question- Weren't the Geneva rights treaties all written in the context of soveriegn nation against soveriegn nation warfare?

How does this relate to enemies who have no alleigance to a nation,nor any governing body which would control their actions? (I hear the sarcasm-"like our government")

Seriously, how do you make a treaty with another party that does not exist in our era of post UN powers.

rightous wrote on November 2, 2007 2:42 PM:

Come on; these incessant, cautious arguments on why Murkasey should or shouldn't be approved by the Judiciary Committee in the Senate are wrong on the face of it. Bush and his criminal band of thieves, cronies and liars in his administration are guilty as hell.

The sooner the Nation gets to the bottom of this corrupt government and begins impeachment proceedings, the sooner the vast majority of Americans can begin to feel a little safer.

anonymous wrote on November 2, 2007 3:29 PM:

First, such an admission would make it far easier and palatable for foreign governments to initiate criminal prosecutions.

Second, if the individuals providing the so-called immunity did so in bad faith and this was readily apparent, at least those providing the immunity could face prosecution and even maybe persons relying, again in bad faith, on opinions they knew were concocted in bad faith. That there was vigorous disagreement by the most professional and most independent officials in the DOJ with legal arguments clearly being promoted by partisan political hacks (such as Yoo) based on bizarre theories would have put anyone on notice that those legal opinions were of dubious legitimacy and there must be a good faith belief that one's actions are truly legally sanctioned or else EACH AND EVERY ONE OF THE NAZI WAR CRIMINALS WOULD HAVE BEEN AND SHOULD HAVE BEEN IMMUNE FROM PROSECUTION.

Third, there is the PR aspect and the public humiliation of these individuals if the bad faith nature of the so-called legal protections are revealed as patently bogus (which they are of course), something that cannot be overcome by the technicalities of the law. Just ask OJ.

Fourth, it is possible that torture occurred prior to the memos being issued, in which case there isn't even the pretense of immunity.

Mafalda Hopkirk wrote on November 2, 2007 3:31 PM:

moondancer,

You have enormous tact and patience.... if only you were among us at the Ministry of Magic.... but I bet you're a Muggle! And proud of it too!

anonymous wrote on November 2, 2007 3:34 PM:

If national leaders can order the issuance of legal opinions that state that red is blue, evil is good, and torture is not torture, then there is no law.

The idea that the OLC's legal opinions on torture were legally binding and conferred immunity on US agents who performed torture is as repugnant as would be claiming legitimacy for a Nazi lawyer's legal opinion that the gassing of the Jews was not genocide as a legal basis for giving the Nazi war criminals immunity.

Sully18 wrote on November 2, 2007 3:54 PM:

To me it is very simple waterboarding is torture and has been for centuries.We need to treat it as such and we must prosecute those who engaged in and approved of it,even if Bush says we don`t torture.

helpmesee wrote on November 2, 2007 4:01 PM:

What does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.

The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.

Nobody is in need of immunity;would you like the Supreme Court to rule on this?

This is not a legal question but a moral one. I truly respect your moral repugnancy to ill treatment,however similiar to HR Clinton last year there may be rare and extreme exceptions.

Anonymous wrote on November 2, 2007 4:13 PM:

Understand this: regardless of LEGAL immunity, if waterboarding is officially declared to be torture by Muksaey, then there is an official declaration by the nation's most prominent attorney that Bush, Rumsfeld, and a host of government officials and CIA agents are domestic criminals, international criminals, and war criminals - irrespective of whether they can be prosecuted or not, they will have been officially condemned as criminals and as a result are in a worse position morally, ethically, and socially than OJ after his acquittal.

NO Bush nominee for Attorney General, no GOP nominee for that matter, will EVER declare any interrogation technique that has been used by CIA personnel, or any other governmental personnel, as authorized by any GOP member of the executive branch, to be torture for this very reason.

It is ammunition for Congress (for impeachment at the very least as noted above), for the opposing party, for civil libertarians, for opposing foreign governments, etc, etc, etc.

And it is the equivalent of officially declaring Bush to be a liar.

Not. Going. To. Happen.

If he can be passed out of committee with all Dems abstaining and confirmed with all Dems not voting, then that is how they should approach it, along with, of course, a vigorous condemnation of Mukasey and the administration during the confirmation debate which makes it absolutely clear that we understand we can do no better, but this refusal to answer the question on waterboarding is immoral, unethical, obstreperous, dishonest, and without a shred of decency.

anonymous wrote on November 2, 2007 4:20 PM:

Whether they are POWs or not, torture is illegal. It is illegal against anyone, anywhere, at any time.

moondancer wrote on November 2, 2007 4:36 PM:

Way upstream I cited where this United States has prosecuted and and convicted war criminals for waterboarding. We have in treaties outlawed waterboarding. Just because a petulant sadistic president wants to hurt the brown people, doesn't mean he can.
If your argument is we need it, well bullshit. It(waterboarding) does one thing, it will break someones will. Now if you want someone to sign a prepared confession, this will work. But if you want someone to tell you where the bomb is, you're screwed. He'll say anything to make it stop. And if you know anything about intelligence(which I doubt) that is not useful information.
Mukasey in or out is almost secondary to this wingnut bullshit that torture is not torture.
Torture is a method of the cruel to inflict their power on others.

anonymous wrote on November 2, 2007 4:47 PM:

. . . acknowledgment that waterboarding is torture would place interrogators in "personal legal jeopardy."

Theoretically, there is nothing wrong with this, since interrogators who imposed torture should be in legal jeopardy, just as those who authorized their actions.

So, whether there is immunity or not, Mukasey is a scoundrel for wanting to protect those who embraced torture.

hms wrote on November 2, 2007 4:56 PM:

Waterboarding isn't good. We shouldn't do it. Till last month the Dem hopefuls had no problem with it,except Biden. He gets my vote!

Why do you bring race into it,I am offended.

Anonymous wrote on November 2, 2007 5:30 PM:

The next Democratic Administration MUST put on trial for war crimes whoever authorized waterboarding, "enhanced stress techniques," and other forms of torture. This almost certainly includes Dick Cheney, David Addington, Alberto Gonzales, John Yoo, Jay Bybee, Geoffrey Miller, George Tenet (yes, he's a Democrat, get over it), Donald Rumsfeld, and most like George Bush. It will not be pretty.

There's not a chance in the world Hillary Clinton will do this. She is too steeped in her Republican upbringing and the post-Vietnam "reconciliation" zeitgeist that ushered in Jimmy Carter (and led to the DLC and Dick Morris' (R) triangulation).

MarchaoceatZoom wrote on November 2, 2007 7:16 PM:

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moondancer wrote on November 2, 2007 11:02 PM:

Mafalda Hopkirk@ 3:31

Thanks for your kind words.

ivorytowerism wrote on November 3, 2007 6:56 PM:

Have you ever raised a kid? Have you ever protected your family's life?Would you shoot someone raping your wife/daughter? Have you ever been the victim of a crime? Have you or those you are responsible for ever been threatened with violence by someone with the malevolence and the ability to follow through on it? I didn't think so.
Have you ever been responsible for the safety of 50 people? 100 people? 1,000 people? How about 270 million people?
Your piety is so noble.It is awesome to know that dancer would NEVER consider "enhanced stress techniques"; but then in his easy insulated life("but I worked for the Peace Corp a whole year")it is a grand luxury to never really be rsponsible for anyones safety.
Maybe you have never loved enough(except an ideal) to be willing to protect another.

" But if you want money for people with minds that hate
All I can tell you is brother you have to wait"

Obviously your pious assumptions of what you would do are just that.You will never walk in a Senator's shoes or a Vice President's shoes.So as the armchair quarterback of course you can hurl the insults and outrage.

Jon wrote on November 5, 2007 9:58 AM:

Nov 3 correction: how Mukesey, Schumer, and Feinstein are protecting the Bush administration from jail. What torturers need is enablers of torture; the Democratic Party has responded.

Barry Halpern wrote on December 20, 2007 7:30 AM:

"...acknowledgment that waterboarding is torture would place interrogators in "personal legal jeopardy." "

Ironically, this nullifies one of his other reasons (excuses) because it tacitly admits we ARE waterboarding. After all, if we don't waterboard, then nobody is in legal jeopardy. So Mukasey has tipped off our enemies to our interrogation methods. These people can't even lie right.

"If you ordered that Santiago wasn't
to be touched, and your orders are always followed, then why was Santiago in danger?" - Lt. Daniel Caffee