Sold Out

The Senate Judiciary Committee vote on Michael Mukasey’s attorney general nomination is scheduled for Tuesday, so let’s review where that stands.

Sidney Blumenthal writers at Salon:

When President Bush nominated Michael Mukasey as attorney general his distinguished career was offered as guarantee of his integrity and independence. … Then Mukasey was questioned about whether waterboarding — a technique of forced drowning first used in the Spanish Inquisition and by orders of the Bush administration applied to accused terrorist detainees — is torture. At great length, the nominee feigned lack of knowledge: “I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that.” Questioned further, he said, “If it amounts to torture, it is not constitutional.” But he would not say whether it was torture.

All 10 Democratic senators on the committee sent Mukasey a letter asking him to clarify whether waterboarding is torture. On Oct. 30, the nominee replied in four convoluted pages. He called waterboarding “over the line” and “repugnant” on “a personal basis,” but adopted the lawyerly pose that it was merely an academic issue: “Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical.”

Why the obfuscation? Blumenthal continues,

Mukasey is not a free agent. He had been strictly briefed and in his testimony was following orders. He has avoided calling waterboarding torture because that is consistent with the administration’s position and past practice. Mukasey’s refusal to disavow waterboarding reveals his acceptance of his assignment to a secondary role as attorney general, an inferior agent, not a constitutional officer, to certain political appointees in the White House.

Those who are responsible for waterboarding have defined and dictated Mukasey’s evasions. His acquiescence demonstrates that no one in his position could take a contrary view to that of David Addington, Vice President Cheney’s former counsel and now chief of staff, who directed and coauthored the infamous memos by former deputy assistant director of the Office of Legal Counsel John Yoo justifying torture, and charged the current acting director of OLC, Stephen Bradbury, to issue new memos rationalizing it.

Paul Kiel at TPM Muckraker:

When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off “our enemies,” for example), but the key to his rationale appears to be his expressed fear that the attorney general’s public acknowledgment that waterboarding is torture would place interrogators in “personal legal jeopardy.”

By this logic, he can’t come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is “steering clear of a potential legal quagmire for the Bush administration” by not answering the question.

Back to Blumenthal:

In his confirmation hearings, Mukasey has proved he will dance as the strings are pulled. His positions on waterboarding express precisely the relationship between the Bush White House and its Justice Department. Mukasey’s testimony telegraphs that the White House will continue to call the shots. He has already ceded the essence of his power even before assuming it. His vaunted integrity and independence have been crushed, short work for Addington.

Paul Kiel:

The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It’s for that reason the OLC’s ability to issue “free get-out-of jail cards” made Goldsmith’s tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn’t have nominated someone who might take them back.

The New York Times

Waterboarding is torture and was prosecuted as such as far back as 1902 by the United States military when used in a slightly different form on insurgents in the Philippines. It meets the definition of torture that existed in American law and international treaties until Mr. Bush changed those rules. Even the awful laws on the treatment of detainees that were passed in 2006 prohibited the use of waterboarding by the American military.

And yet the nominee for attorney general has no view on whether it would be legal for an employee of the United States government to subject a prisoner to that treatment? The only information Mr. Mukasey can possibly be lacking is whether Mr. Bush broke the law by authorizing the C.I.A. to use waterboarding — a judgment that the White House clearly does not want him to render in public because it could expose a host of officials to criminal accountability.

So far, three of the ten Democrats on the Senate Judiciary Committee — Dick Durbin (IL), Sheldon Whitehouse (RI) and Joe Biden (DE) — have said they will vote against advancing the nomination to the full Senate. The other seven Dems have not said how they will vote. The nomination has become a problem for Chuck Schumer, who had suggested Mukasey as a consensus nominee to the White House and declared two weeks ago that he should be confirmed. More recently, he has been noncommittal.

None of the Republicans on the committee, including Arlen Specter, has made any serious noise about not supporting the nomination. It will probably take the “no” votes of all ten Democrats to stop the nomination. Here are the names of the committee members. If any of these critters is your senator, be sure to let him/her know what you think.

See also Rosa Brooks, “Mukasey’s black magic on torture.”

6 thoughts on “Sold Out

  1. gwdumshit is on right now telling us all how he’s a really good guy who really knows his shit and he’s a good man, confirm him damit. Fool. Of course this is in front of the heritage foundation. It’s all good, we don’t torture and we have to have “effective measures” to stop all the evil that awaits us unless our great commander stops the scourge. We are at risk he says.


  2. Balkin thinks otherwise: “The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members– and those obeying its orders– will never be held to account in any American court of law.”

  3. The issue of waterboarding can be put to rest easily.
    We need a volunteer from the pro waterboarding crowd ( I nominate Lindsay Graham, but Rush Limbaugh will do), then we need a waterboarding team from one of those secret rendition locations. Team waterboard will not know the identity of the waterboardee, so the control factor won’t be corrupted. The waterboarding “presentation” will appear on prime time national T.V. for review by all. We can then all get it clear if the practice is torture or not. This isn’t rocket science.

  4. Waterboarding or not, the vice-president of the United States publically said regarding torture, “Sometimes we have to work the dark side.” Whether waterboarding was ordered, or approved, by the Executive or not, they can hardly deny that they approve of torture.

    Congress can legally ban torture any time it wants. Can we assume then that the majority of its members approve of torture?

    Maybe it’s my old age, but the very fact that the fine points of torture are now on the national calendar of the United States is sickening.

  5. The whole thing makes me sick and disgusted. How can we even get to such a low to where we play games bantering whether or not water-boarding is torture or not. Mukasey should be given the boot because he has already shown he lacks the integrity to stand for the law and for common decency.

    What kind of bullshit is, ” we don’t want to divulge our methods to the enemy”. It’s a cop-out from a man who can be honest..another boot licking lackey for Bush. No spine.

    I like erinyes’s suggestion, except they should use Mukasey as the waterboardee so that he can clear up in his feeble mind whether or not water-boarding is torture.

    And Hitler only resettled the Jews?.. yeah, resettled them into the cosmos.

  6. Michael Mukasey,
    Ask yourself this, “Torture, what is it?”
    If you, your mother, brother, sister, neice, nephew – anyone in your family, wouldn’t want to undergo it, it might be defined as torture. Picture waterboarding your dear Ol’ Grandma, or Grandpa…

    erinyes and Swami,
    Good points.

    Hat-tip, Mr. Mukasey,
    If the Spanish Inquisistion, Hitler, Stalin, Walter O’Malley (Oooops!), and Pol Pot did it, then it probably is torture.

    Before you deny it, why don’t you try it? And then tell us whether you think it’s torture or not?

    But, of course, you won’t. You know the answer, as I do. It IS toruture.
    And they won’t let you take the position of AG if you don’t give some legal mumbo-jumbo answer that will exhonerate them from being prosecuted for the WAR CRIMINAL’S that they are.

    Why should anyone with a shred of human decency support you, Sir?

    Honestly, I think I’d rather be waterboarded than torturing myself with the the logic you’re using. At least I could rationalize to myself that others were torutring me; not that I was toruturing everything I once stood for.

    Torture is in the mind of the beholder. Behold yourself, Mr Mukasey!
    Behold yourself…

Comments are closed.