Just to echo Charley and David’s observations, this just in:
President Bush’s nominee for attorney general told the Senate Judiciary Committee on Tuesday that an interrogation technique called waterboarding is repugnant but that he did not know if it is legal.
So in just a few days, the would-be chief law enforcement officer has moved from a claim that he doesn’t know what waterboarding is to a claim that he doesn’t know if it is legal.
This is ludicrous. Of course Mukasey knows what waterboarding is, and of course he has an opinion on whether it is legal. He’s just playing Bill Clinton-like definitional games. How any Democrat can confirm this guy and still attempt to call themselves an opposition to the Bush administration is beyond me. It underlines the fact that Democrats have been mincing their words and pussy-footing around the most difficult issues: holding their political breath, as it were, until the 2008 elections when they hope to capture the White House.
That’s not leadership, it’s weakness.
The Mukasey letter is here.
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Mukasey’s refusal to answer the question is definitely problematic, and I applaud the senators who have demanded a clear answer. I do, though, want to point out one positive aspect to Mukasey’s letter: his apparent rejection of the extreme theory of presidential power that says that a statute that infringes on the President’s “commander-in-chief” power is unconstitutional. This is really, really important.
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Mukasey seems to say that if waterboarding is torture as defined by statute, then it is a crime whether the President likes it or not. Likewise, he seems to say that because the Detainee Treatment Act (beginning at p. 60 of the link) forbids techniques such as waterboarding that are expressly prohibited by the relevant Army Field Manual, the military cannot engage in waterboarding whether the President wants it to or not. (Does anyone know what the President would have to do to amend the Field Manual?) Finally, Mukasey notes that if waterboarding constitutes “cruel, injuman, or degrading treatment,” it would be illegal under the DTA and the Military Commissions Act if it “shocks the conscience.” And he seems to say that waterboarding is illegal under the War Crimes Act, whether or not the President agrees, if it is a “grave breach” of Common Article 3 of the Geneva Conventions.
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Now, I think it should be obvious that waterboarding is torture, and it certainly shocks my conscience. The United States actually prosecuted waterboarding as a war crime following World War II. I can’t for the life of me figure out why Mukasey’s letter is so cagey on such a clear point.
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And yet, I breathe a sigh of relief when I see that Mukasey is committed to the notion that Congress, not the President, makes the law, and that the President is bound by the law like anyone else. The notion of “commander-in-chief authority” is a much graver danger to our form of government than any other danger we face in the world. And who knows? Perhaps Mukasey, if confirmed, would indeed conclude that waterboarding is illegal.
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TedF
..is not having the political cajones to actually pass legislation that outlaws waterboarding, yet demagoguing the issue by petulantly demanding that a nominee for the highest law enforcement position in the land should outlaw the practice from the witness chair.
Congress already has outlawed waterboarding. Are you seriously going to argue that waterboarding is not torture, or that it does not shock the conscience, or that it is not a grave violation of the Geneva Conventions? That’s what you’d have to do to argue successfully that Congress has somehow failed to act.
..then they (Congress) should end this debate by passing specific legislation to prohibit it.
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They won’t.
I find that remarkable.
First, even if there is a veto-proof majority in both houses, enactment of such a law would not “end the debate” as long as the President claims the authority to disregard statutes to the extent they infringe on the “commander in chief” power, as he did in his signing statement concerning the MCA.
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Second, passage of a statute banning a particular means of torture arguably permits the inference that other forms of torture, not expressly banned, are legal. Does Congress really have to pass a law banning each and every form of torture expressly? Is that how low we’ve fallen?
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TedF
It would be terrible for the guy applying for the “highest law enforcement position in the land” to take a position on enforcing the law.
As I very specifically stated, the prospective A.G. is being put in a position where it is demanded of him that he declare a practice to be illegal, even though congress itself has not.
Further, I feel that these demands are being made not for high-minded or moral purposes, but for political ones.
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Should he determine waterboarding to be illegal (even though congress refuses to do so), he will likely have to prosecute to end our own military’s practice of using the now illegal technique on U.S. soldiers in the training of special forces.
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And yes, I do think that a statute must be very specific in what it prohibits.
If you don’t want there to be any wiggle room, then don’t leave any.
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I assume this is a reference to SERE training. Surely you don’t think that a course designed to teach soldiers how to resist, shall we say, “enhanced interrogation techniques” is itself torture. Your mention of SERE does, though, bring up an interesting point. As Mark Benjamin reported in 2006, SERE instructors taught their techniques to Guantanamo Bay interrogators. According to the (unnamed) Chief of the “Interrogation Control Element” at Guantanamo:
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SERE aside, you’re right to be concerned that if the Justice Department determines that waterboarding or other techniques are illegal, interrogators and their superiors may (I would say should) be liable to prosecution. “I was just following orders” is not a defense when the order, e.g., an order to torture, is so manifestly illegal. If I were a torturer, I would be concerned that whatever secret memorandum supposedly justifies the torture I’m inflicting isn’t worth the paper it’s printed on.
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TedF
my point is that there’s a statute on the books now that prohibits the infliction of “severe physical or mental pain or suffering” (as further defined here). The job of a law enforcement officer is to take statutes like that — and if you read that one you’ll that that it is actually pretty specific; apply them to specific factual situations; and decide whether the statute permits or forbids the situation presented. Mukasey has (or should have, and certainly has ready access to) all the information about waterboarding that he needs in order to make that assessment. If he won’t do the job he’s up for, then he shouldn’t be confirmed.
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Two more things. (1) You can’t seriously imagine that Congress could hope to enact a law further defining torture, can you? With this president in office? So reality is, we have a statute, it’s pretty specific, and that should be good enough for an up or down answer. The notion that Congress must specifically forbid every different form of torture is ridiculous — those interrogation guys are nothing if not creative, and they’ll just come up with something not covered by that “very specific” language you yearn for, don’tcha think? (2) Personally, I think those advocating for waterboarding’s legality (or that of any other form of “harsh interrogation”) should undergo it. Perhaps that’s the best way for Mr. Mukasey to form an informed judgment about whether waterboarding constitutes “severe physical pain or suffering,” or mental suffering rising to the level of a “threat of imminent death.” I mean, really, how else are you going to know?
I didn’t hear the exact question, but let me throw out this suggestion. If, as has been suggested above (TedF) Congress already has outlawed waterboarding. the question to Mukasey was actually directed to the question of where he will direct the prosecutorial resources that have been made available to him.
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A couple of years ago, the idiot US prosecutor in the western district of Pennsylvania decided that pornography was so important that she would prosecute Internet porn cases there, thereby wasting resources that might have been used for counter-terrorism or other criminality. That was with the full approval of the DoJ, and it was a waste of resources.
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Now, the issue of the question presented to Mukasey is where he is going to devote his prosecutorial resources. Not whether he believes that certain practices are or are not illegal.
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If you have actually read a criminal code–it’s clear that you haven’t– you would know that the code is not a laundry list (which you are suggesting) of specific acts that are illegal. The reason should be obvious.
Raj, I think you’re right to say that how Mukasey would use the DOJ’s prosecutorial discretion is an important issue. There are, however, two others: (1) does Mukasey agree that waterboarding is torture and thus within the scope of the anti-torture statute (and similarly for the DTA, Common Article 3, etc.); and (2) even if Mukasey does think waterboarding violates a statute, is he prepared to say that it is nevertheless legal under the President’s ridiculous interpretation of the commander in chief clause.
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I think Mukasey is ducking question (1), which is worrisome. I like his answer to question (2). I’m not sure what he would say to your question about prosecutorial discretion, though as a raw political matter I find it extremely difficult to believe we’ll see any war crimes prosecutions against U.S. soldiers, CIA interrogators, or officials until the change of administration in 2009.
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TedF
…no particular dispute, but I wonder. Is CA3 self-executing? (I’m not sure what DTA refers to.) As far as I can tell, CA3 is not self-executing, but instead leaves it up to the signatory to enact legislation to put it into effect. Analogy: trade treaties (GATT, NAFTA) need implementing legislation from the contracting states to actually put the provisions of the treaties into effect.
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Totally agree with your 2d paragraph.
If the Washington Post is right.
…as usual, the Washington Post reporting is, at best, incompetent. I suspect that they are referring to executive orders. I’ve never heard of administrative orders.
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They will be irrelevant after 20 Jan 2009.
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It would be interesting to see if a person who might be able to establish standing were to step forward so that an interest group could file suit to delay implementation of some of these “orders.”