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Today's Must Read
No one will ever say "poor Chuck Schumer."
But Chuck is in a bind, to be sure. He's never been shy about taking credit. And when the White House was reportedly musing about selecting someone like Ted Olson to replace the attorney general who Schumer helped drive from office, Schumer didn't hesitate to publicly recommend a "consensus" candidate like his old acquaintance Michael Mukasey.
But after Sen. Sheldon Whitehouse (D-RI) finished with him, Mukasey was a consensus candidate no more. And given a second chance, he still refused to call drowning someone (under controlled circumstances) torture.
Now, as we said yesterday, it all comes down to the Senate Judiciary Committee, of which Schumer is a very vocal member. And with four Democrats already coming out against Mukasey, Schumer's in the novel position of being one of the key swing votes, reports The Washington Post:
Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past.
Until yesterday, Schumer was ducking cameras rather than answer questions about Mukasey. And when he finally talked to reporters, it was clear why he'd been camera shy. He told reporters yesterday on a conference call that he's caught in a "substantive tough spot." And even during that call he vaulted back and forth on how he might vote:
"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."
But Schumer said minutes later that his mind is not made up: "He's the best we can get, but that doesn't necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no."..."The question is whether he will show the requisite independence," Schumer said. "That's what I want to clear in my own head. . . . If Congress passes a law forbidding waterboarding, would he enforce that?"
All that said, Sen. Leahy has announced that he will reveal his position on Mukasey today at 3 PM. And if he decides to support Mukasey (the most Leahy has said so far is that he's "concerned"), a lot of pressure would be off Schumer. But as The New York Times notes, no one has been in a rush to rescue him:
Mr. Leahy is one of several lawmakers on both sides of the aisle who seem to be quietly enjoying the spectacle of Mr. Schumer in this political predicament.Mr. Leahy, smiling broadly outside the Senate chamber on Thursday, refrained from needling Mr. Schumer. “I don’t think I have ever seen him in a pickle,” he said.
Note: There was a crucial aside in the Post's piece this morning. And that was that if a yes-no vote on Mukasey fails, "Judiciary Republicans are likely to seek to forward the nomination with a neutral or negative recommendation to the full Senate for a confirmation vote." In other words (as we explained yesterday), if the votes aren't there for Mukasey to pass with a straight yes-no vote, it's still possible that Mukasey could go to the full Senate for a vote, where his confirmation is virtually assured.
Comments (45)
jvill wrote on November 2, 2007 10:15 AM:Shorter Schumer: Hmmm... I know I saw my testicles around here somewhere. Hmmm...
jimijazz wrote on November 2, 2007 10:16 AM:Again, I am sick of the internal politics of the committee. Specifically Schumer, Leahy, and Feinstein. All they're trying to do is save face at the expense of the country. Mukasey is obviously unfit for the job as attorney general. And to say this is the best we could get from Bush is bogus. There are plenty of good federal judges that could have been chosen for attorney general. If that means dumping Mukasy's nomination then so be it.
bhayden90 wrote on November 2, 2007 10:29 AM:"That's what I want to clear in my own head. . . . If Congress passes a law forbidding waterboarding, would he enforce that?"
gregor wrote on November 2, 2007 10:30 AM:That really is the key issue. Condemning specific torture techniques should not make anyone feel any better about Mukasey. The real issue is his comment about the President being above the law. Mukasey can be completely disgusted by torture, but if he feels that the President can disregard a law in the interest of national security, all the condemnations of torture and laws against torture will not matter at all. Also, focusing on torture techniques with Mukasey has made things much easier on the Administration. Rather than having to explain the details of how and why the President is above the law, Dems have allowed the President to talk about "24"-like issues. Many people can be fooled into supporting Mukasey if the conversation is about giving the President the power to torture someone with knowledge of an impending terror attack. However, it would be much more uncomfortable for the President to have to argue about how he is above the law.
There is no dilemma for the good Senator. Waterboarding is torture according to all historical precedents prior to the Bushistas. So even if the nominee were his own son, the right decision for the Senator would be to vote no.
There is no room for political calculation in a matter as serious as this.
Rebekah Jensen wrote on November 2, 2007 10:30 AM:If this report from ABC News is true then the question for Schumer, as for all Senators, is this: Are we going to hold our military to a higher standard than the top law enforcement official in the country?
History of an Interrogation Technique: Water Boarding
http://abcnews.go.com/WNT/Investigation/story?id=1356870&CMP=OTC-RSSFeeds0312
"Water boarding was designated as illegal by U.S. generals in Vietnam 40 years ago. A photograph that appeared in The Washington Post of a U.S. soldier involved in water boarding a North Vietnamese prisoner in 1968 led to that soldier's severe punishment."
"The soldier who participated in water torture in January 1968 was court-martialed within one month after the photos appeared in The Washington Post, and he was drummed out of the Army," recounted Darius Rejali, a political science professor at Reed College."
bob wrote on November 2, 2007 10:39 AM:Chuck (and Diane and Pat),
Don't make this harder on yourselves than necessary. If you vote no, Bush is probably going to put him in as a recess appointment anyway. Mukasey has given you zero reason to vote yes (not to mention the Bush/Cheney admin generally), so why stick your neck out on his behalf?
Keep writing your Senators, TPMm readers!
Anonymous wrote on November 2, 2007 10:39 AM:Please, Chuck. Did you expect anything less from this Administration? You should have nominated Spitzer.
nofltwlt wrote on November 2, 2007 10:53 AM:Chuck, don't make the mistake that all republicans make; just admit your error and move on.
kentuck wrote on November 2, 2007 11:01 AM:Schumer has a problem because he endorsed Mukasey as a consensus nominee. However, he needs to look at this from a larger perspective. No one person or nominee is more important than our laws or our
Constitution.
The time has arrived. The line has been drawn in the sand by the tyrant in the White House. It is time for the Senate to inform him in no uncertain terms that he is not above the law.
We will not be without an Attorney General because we have one now. Schumer and the Senate should not permit themselves to be threatened in such a way. Out of a greater good, he should vote against Mukasey.
TheraP wrote on November 2, 2007 11:09 AM:Seems to me that Schumer can simply say he is disappointed that the Judge (he previously admired) has impaled himself on this. And vote NO.
jimijazz wrote on November 2, 2007 11:10 AM:Exactly. We already have an acting attorney general and if Bush want to appoint Mukasey in a recess appointment, that's his call. But it's the responsibility of the congress to not enable Bush. It's high time. And all this name calling Bush has uttered is totally disgusting and should be addressed by congress. Everybody recognizes that in fact HE is the fascist.
swan of blue wrote on November 2, 2007 11:13 AM:As John Nichols of "the Nation" said on Rachel Maddow's show last night - the key question is "Will Mukasey allow President Bush to break the law?" His responses in the hearing, and his coached-by-the-White-House written response re waterboarding indicate that he will indeed allow the President to break the law. Note to Schumer and the rest of the Committee members - just say NO!
No RECESS wrote on November 2, 2007 11:14 AM:Take no recess - unless the petulant kid agrees to no recess-appointments.
imsoconfused wrote on November 2, 2007 11:21 AM:Shumer vacillates: "And even during that call he vaulted back and forth on how he might vote"
OK, so he's torn. He has my permission to heal himself and steel himself by stepping back and taking a cool look at the situation. I wouldn't hold it against him if he were to recognize that Mukasey had misrepresented himself to the public and to Shumer as a competent judge who respects the rule of law.
Shumer can excuse himself as disappointed, not wrong or disloyal, and vote against Mukasey with a clear conscience. He proposed the man, and the man let him down. A clear conscience is nice sometimes.
Mafalda Hopkirk wrote on November 2, 2007 11:23 AM:In case you haven't read it, Blumenthal on Mukasey - and why he's forever tarnished by his caving in to the bush/cheney/addington talking points.
Ditto wrote on November 2, 2007 11:31 AM:what imsoconfused said:
"Shumer can excuse himself as disappointed, not wrong or disloyal, and vote against Mukasey with a clear conscience. He proposed the man, and the man let him down. A clear conscience is nice sometimes."
stephen wrote on November 2, 2007 11:48 AM:THe best way to understand this I think is to read Sidney Blumenthals column on Salon. It is very clear what is ging on. Sidney points out that Muckasey is already compromised by Addington. Addington is calling the shots and telling AMuckasey what to say and what to do. That is where we were with TJorture Boy Alberto. Schumer is just getting in line with mor off the same for the "New" Attorney General. Also Muckasey is being shiffty with his answere becasue he knows that if he said waterboarding is a crime then alot of people from Bush on down to generals would be in deep do do and would in fact be eligable for indictment of war crimes and crimes agaisnt humanity that Muckasey would have to prosecute. Of course they ARE guilty of these crimes and should be pursued until the day they die as far as I am concerned.
magster wrote on November 2, 2007 11:50 AM:The confirmation hearing was Cheney flipping off the Democrats by proxy. No self-respecting Democratic senator should vote for Mukasey.
Take a stand Chuck, Diane and Pat!
Anonymous wrote on November 2, 2007 11:51 AM:Most of the time when people are "torn" like this it's because they know the right thing to do, but lack the will to do it.
Vote no, Chuck. You know it's the right thing to do.
Anonymous wrote on November 2, 2007 11:58 AM:I'm not counting on any member of the Judiciary committee acting on principle.
Sisyphus
Fractal wrote on November 2, 2007 12:03 PM:As Paul's post quoted the WaPo article (click Fractal link), Schumer asked "If Congress passes a law forbidding waterboarding, would he [Mukasey] enforce that?"
That is a red herring and a dodge, a way for Schumer to create a future event that excuses Mukasey's failure to acknowledge what the law IS now. The settled law presently in force IS that waterboarding is illegal and is forbidden because it is both (a) torture and (b) cruel & inhuman treatment. We don't need no stinking (new) "LAW," we already have a "LAW," Chuck.
Schumer implied that current law does not "forbid[ ] waterboarding." A total crock. The settled law -- under U.S. criminal statutes, the Geneva Conventions (which are U.S. law and which are binding on U.S. courts as the Supreme Court said in Hamdan), other international treaties (which are binding on U.S. courts, as the Supreme Court said in Hamdan), and the Uniform Code of Military Justice (UCMJ) as well as military field manuals -- is that waterboarding is a war crime. It is a CRIME. Any nominee for Attorney General has a Constitutional obligation to acknowledge settled law and precedent designating war crimes.
Every Senator takes an oath to uphold the Constitution, which makes international treaties binding on U.S. courts -- including treaties designating war crimes. There is no honorable alternative, the Senators on the Judiciary Committee must all vote NO on Mukasey's nomination.
benjoya wrote on November 2, 2007 12:25 PM:schumer's office:
(202) 224-6542
give 'im a nice brooklyn 112__ zip code so's he'll listen
joe dutko wrote on November 2, 2007 12:35 PM:I've had it w/ Schumer and Feinstein.
Fractal wrote on November 2, 2007 12:51 PM:Who owns them?
The WaPo editorial looks like it was negotiated with Senate Judiciary Dems to give them an escape hatch like Schumer is trying to fabricate: just go ahead and confirm Mukasey as AG, then pass a NEW law forbidding waterboarding. (Click Fractal.)
Waterboarding is ALREADY illegal, it is ALREADY a war crime, and has been held to be a war crime by U.S. Courts for over 60 years. That is the reason why the U.S. Army Field Manual forbids waterboarding -- because it is a war crime. Drowning a prisoner is a war crime. Waterboarding is not "simulated" drowning as the Post news coverage at the top claimed -- it is ACTUAL drowning to just before the point of death. It is cruel, inhuman, degrading and disgusting conduct.
Oh, and did the Post editorial and Schumer forget Congress JUST PASSED A NEW LAW OUTLAWING WATERBOARDING and any other "cruel & inhuman" treatment of any persons under U.S. control, in the McCain-Graham compromise passed by the Senate last year? So stop all this bullshit about passing a "new" law after Mukasey is confirmed.
Waterboarding is a war crime, not because you want it to be Chuck, not only when Congress passes a new law WaPo, it has been a well-settled war crime and outlawed under U.S. criminal statutes for over 60 years. What is new and stunning today is that all of Washington and the main stream media now recognize what Gonzales tried to keep classified: Bush & Cheney explicitly approved waterboarding, and ordered it used against persons held under U.S. control. They are war criminals. Our White House is occupied by war criminals. Thugs.
Refusing to demand accountability for war crimes: just one more disgusting display of spinelessness and blood-thirsty Medieval conduct by our MSM and Senate incumbents. Clean up your act, or we will clean all of you out of the Congress.
TheraP wrote on November 2, 2007 12:53 PM:Thank you, Fractal - for restating the obvious.
Sad day - when the obvious must re restated, over and over and over and over....
brian wrote on November 2, 2007 12:57 PM:I would admire Schumer a great deal for voting against Mukasey. Vote 'No', Senator Schumer.
It is equally important to ask, Who is going to head the Office of Legal Counsel ? That is where the mischief is done.
dewey wrote on November 2, 2007 1:00 PM:Senator Dianne Feinstein
United States Senate
331 Hart Senate Office Building
Washington, D.C. 20510
Phone: (202) 224-3841
Fax: (202) 228-3954
TTY/TDD: (202) 224-2501
Click here to email me.
shipwreckedcrew wrote on November 2, 2007 1:11 PM:Is rendition of terrorits to a third country for purposes of interrogation unconstitutional?
Why did the Reno Justice Dept. issue a memo saying that it was lawful for the Clinton CIA to do so?
Mr. Coffee Cup wrote on November 2, 2007 1:43 PM:Hey! Hey! Hey! It's a happy Day! Why?
Well because THE ENEMY OF MY ENEMY IS REALLY REALLY MY FRIEND!
Let's do remove Schummer, and take Feinstein, Kerry, Kennedy, Rangel with them.
I really laugh, as does the whole world laugh, at you about your "So Pious and scantimonious noble positions on water boarding". What a bunch of frauds.
REP wrote on November 2, 2007 1:46 PM:Now let's see some real courage. Put your own children in great harms way; life and death situtation, and see how you feel about the police/Armed forces interrogations! "Torture that damned kidnapper until he tells us where my child is hidden!" would be your mantra!!
Clinton will use torture, Obama will use torture, the generals will use anything necessary to prevent another 911 incident. And they damn well better.
What will happen if Schumer votes against Mukasey?
Milton Wiltmellow wrote on November 2, 2007 1:51 PM:Will the Senate go against the votes of both of the senators from the nominee's home state?
On the question of waterboarding, What are the questions that are being asked that require waterboarding for the right answer?
If the Dems capitulate one more time, I'll ...
I'll ...
I'll ...
Bastards!
Jane wrote on November 2, 2007 1:54 PM:Bush needs to know that if an Attorney General is so vital 'in time of war' that NO APPOINTMENTS WHATSOEVER will be approved until he brings us a good nominee. Then see if this expands the group of the best nominees we can expect.
If! our people have been torturing, they need to do the time for the crime. Sweeping it under the rug -- I'm not fully briefed so I can't say one way or another just makes the United States despicable and loses us potential allies in a time of potential war.
Bush is not above the law, nor are people who have committed crimes at his behest, classified or otherwise.
If he appoints Mukasey as a recess appointment which Reid should prevent, this keeps the approval of the unitary executive idea limited to the Rethugs. If the Senate confirms this guy it will be portratyed as a precedent for the idea that the President -- elected or not -- is above the law.
Scott L wrote on November 2, 2007 1:57 PM:There is no way we can have a A.G. that says the President is not bound by the laws of the United States. Waterboarding is just a red herring.
parrot wrote on November 2, 2007 2:27 PM:"The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."
Hmm...how would that be in keeping with the willful disregard of our laws and kowtowing to the whims of King George?
Legalize wrote on November 2, 2007 2:29 PM:I love ya, Chuck. I voted for you. This is easy: new information has come to light that makes it impossible for you to support this nomination. New information comes to light all the time, Chuckie baby. Admit you were incorrect about the man and move on. You think the voters of New York are going to punish you for that? Gimme a break.
Legalize wrote on November 2, 2007 2:34 PM:"Why did the Reno Justice Dept. issue a memo saying that it was lawful for the Clinton CIA to [render suspects to 3d countries]?
1. Provide the document.
2. If said document says what you purport, it is still wrong. See how that works?
Fractal wrote on November 2, 2007 3:14 PM:We should be trying to find Leahy's press conference online. So far, it's not on CNN, MSNBC, C-SPAN Radio, NPR. No link at TPM home page. Nothing on home page for WaPo or NYT.
Fractal wrote on November 2, 2007 3:41 PM:CNN only has video up from Wednesday and Thursday, nothing from Leahy's press conference today.
Fractal wrote on November 2, 2007 3:57 PM:CNN coverage improving dramatically, including quote from Sen. Kennedy reminding that waterboarding has been illegal since World War II, concluding that waterboarding "is specifically banned in U.S. law governing the treatment of prisoners by the U.S. military."
JNagarya wrote on November 2, 2007 4:47 PM:shipwreckedcrew wrote on November 2, 2007 1:11 PM:
Is rendition of terrorits to a third country for purposes of interrogation unconstitutional?
Why did the Reno Justice Dept. issue a memo saying that it was lawful for the Clinton CIA to do so?
1. Substantiate.
2. Clinton is not in office; Bushit is. Stop avoiding the issue by fabricating smears against the irrelevant.
3. "Two wrongs make a right" is blatantly irrational, and both immoral and unethical.
4. Being intellectually dishonest, as are you, is not only irrational but also immoral; so you are also a lying hypocrite by pretending to be morally superior.
5. To defend war criminals by means of such multilevel deceit is anti-American--the exact opposite of "patriotic".
JNagarya wrote on November 2, 2007 4:51 PM:That there is an acting AG is the fact; but it is irrelevant: Mukasey expressly states that he will do exactly as did Gonzales: endorse subversion of the Constitution. He should not only not be approved, he should be disbarred.
The DOJ can function without an AG; and at present it is better that it isn't still an active stonewall between Congress, and We the People, on one hand, and the Bushit criminal eterprise, on the other.
The Congress shouldn't even be entertaining Bushit's anti-Constitutional/American nominee; it should be too busy to do so becaue of investigations, and multiple impeachments, removals, and "renditions" of the Bushit war criminals to the Hague for the _fair_ trial denied Saddam Hussein.
JNagarya wrote on November 2, 2007 4:57 PM:Kennedy is correct: waterboarding has been illegal since at latest the 1949 Geneva Conventions, as it was used during the war by the Japanese (and likely the Nazis) against POWs. That means it has been banned for roughly 60 years (Viet Nam was not 60 years ago).
TeeVee gives the short-memory history that it was "banned" as result of an incident in Viet Nam. It was banned as an outcome of Nuremberg, and the war crimes trials of the Japanese.
Not that it was exactly legal before then.
seraphim15 wrote on November 2, 2007 5:00 PM:WASHINGTON — Sens. Charles Schumer and Dianne Feinstein say they will vote for Attorney General-nominee Michael Mukasey, which likely gives him enough support to pass the Senate Judiciary Committee. Their decision came shortly after the chairman of the committee, Patrick Leahy, D-Vt., announced he would vote against Mukasey, a former federal judge.
"This is an extremely difficult decision," Schumer said in a statement, adding that Mukasey "is not my ideal choice."
Profiles wrote on November 2, 2007 9:49 PM:Come on Feinstein and Schumer, try getting nominated for "Profiles in Courage" and at least stop Bush from appointing his get out of jail card as AG. This travesty has already gone on much too long.
SPENCER wrote on November 5, 2007 2:57 PM:we're under the impression that Schumer is against torture; he's for it, damn it!
Just read what he said in 2004:
So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.
And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do.
So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.
And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do.
Granted, he may have changed his mind, but given his hand-wringing over Mukasey, I doubt it.