November 01, 2007


Chuck Schumer: "No nominee from this administration will agree with us on things like torture and wiretapping...The best we can expect is somebody who will depoliticize the Justice Department and put rule of law first, even when pressured by some of the administration. If Mukasey is that type of person, I’ll support him.” [my emphasis]

Mr. Schumer, "putt(ing) rule of law first" means outlawing torture. I well understand that (especially compared to Gonzalez) Mukasey is a veritable paragon of competence. And I know how desperately the Department of Justice needs fresh leadership of such caliber. But torture speaks directly to the civilizational values of this country in most fundamental fashion. There can be no compromise on this point, even on behalf of a very talented lawyer from your home state. Torture belongs to the pre-Enlightenment era, hundreds of years past. The notion that the U.S. Congress would approve as Attorney General--the chief law enforcement officer of the United States--a man who can not declare an ancient, disgraced torture technique such as water-boarding illegal is simply unacceptable. Please stand firm on behalf of our country on this point.

UPDATE: Re-reading this post, it feels almost desperately mawkish, to a fashion, not least given the likely reality John Cole points out so well here. Still, what would Andrew say, "know hope"? Meantime, Scott Horton registers his protest too, quite significant, given Mukasey works at his firm. But Scott (who I know personally) simply has too much integrity to do otherwise. He writes:

I have very strong conflicting views about the vote which is coming in the Judiciary Committee. I believe that Mukasey, as an individual, is exceptionally well qualified to serve as attorney general. I would approve the Mukasey who says he “personally” finds waterboarding abhorrent. But I am troubled by the “official” Mukasey who is being trotted out as something different. And I believe that the nation cannot, at this stage, accept the appointment of an attorney general who refuses to come clean on the torture issue. In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite.

If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.

When good men get too close to the orbit of this deeply corrupt, wayward Administration, they almost inexorably get sullied in the process. That's the sad reality, alas.

MORE: Gig's up.... And so the Congress, even with a Democratic majority, continues apace towards rubber-stamping Duma status. Frankly, if we had fewer "constitutionally illiterate" (Bruce Fein's phrase) representatives, impeachment charges for Dick Cheney would likely be getting drawn up. Instead, we're confirming as Attorney General of the United States a man who won't declare water-boarding illegal, and this with the opposition party controlling the Judiciary Committee. We are living through one of the saddest chapters in U.S. history. The question is, how and when will it end?

Posted by Gregory at November 1, 2007 11:18 PM

It really is unbelievable that we're even having this kind of debate now. Some issues were actually resolved previously, but it seems each generation must go through a recalibration of their morals. It is really sad.

And Schumer better "put rule of law first" and not approve of Mukasey until Mukasey states clearly the obvious: waterboarding is torture and it is illegal.

Posted by: Dan at November 2, 2007 10:30 AM | Permalink to this comment Permalink

The Democrats prove again that, in the very depths of their hearts and souls, that they are the party of government, and smooth government functioning is far more important than any principle. Torture on, as long as we can get our earmarks...

Posted by: Appalled Moderate at November 2, 2007 11:47 AM | Permalink to this comment Permalink

Clinton, Clinton, Obama and Schumer. They have all, to a greater or lesser degree, embraced the concept of coercive interrogation (some, even torture — which is unquestionably illegal), and they have all underscored the excruciating complexity of this issue. Somehow, they are fit to lead the Democratic Party but the suitability of Mukasey — who has taken a more measured stance — to be attorney general is in doubt? What am I missing here?

Posted by: Andy M. at November 2, 2007 12:36 PM | Permalink to this comment Permalink

Well, Andy, if you definition of "more measured" is to refuse to oppose waterboarding while the four Democrats are all doing so, I suppose you could be correct. Maybe you mean that Mukasey favors carefully measuring the mount of water used in the procedure?

Posted by: Bruce Moomaw at November 2, 2007 04:34 PM | Permalink to this comment Permalink

"What am I missing here?"

What you are missing is that none of them: not Clinton nor Obama nor Schumer nor Mukasey nor Rommney nor nauseum...are fit to lead a Jr Varsity Pep Rally until they state, unequivocally, that the United States of America does not torture people.

Christ! This country is circling the drain faster and faster.

Posted by: Flitterbic at November 2, 2007 04:40 PM | Permalink to this comment Permalink

"Christ! This country is circling the drain faster and faster."

And individuals such as the drafter of the above quoted sentence only serve to prove that point.

Posted by: Andy M. at November 2, 2007 05:22 PM | Permalink to this comment Permalink

"When good men get too close to the orbit of this deeply corrupt, wayward Administration, they almost inexorably get sullied in the process." Sounds like a non-technical diagnosis of the Bush Derangement Syndrome that currently afflicts so many moonbats on the left.

Posted by: Andy M. at November 2, 2007 05:40 PM | Permalink to this comment Permalink

Schumer's New York State constituents who do not support a regime associated with torture will have to look for another name in the column next election.

Posted by: Scott Hightower at November 2, 2007 09:49 PM | Permalink to this comment Permalink

I didn't expect miracles from the Democrats -- after all, we live (entirely unintentionally, since the Framers didn't expect political parties to exist at all) under a system in which the President has tremendous power relative to any Congress. But I have to say that I expected more from the Congressional Dems than this. The whole thing is depressingly reminiscent of Britain in the late 1930s, in which both political parties were about as much use in dealing with the growing crisis as a third leg.

Posted by: Bruce Moomaw at November 2, 2007 11:29 PM | Permalink to this comment Permalink
(entirely unintentionally, since the Framers didn't expect political parties to exist at all)

Really? Didn't parties form almost immediately though?

Posted by: Dan at November 3, 2007 01:06 AM | Permalink to this comment Permalink

Yes indeed, Dan -- about a week after the new government was up and running. It startled and alarmed the hell out of them, but they quickly realized there was little they could do about it -- despite the fact that they had previously written interminably about how the formation of political parties was an extremely dangerous and destructive trend in any democracy.

And, unfortunately, a great many of the "defenses against tyranny" that they wrote into the Constitution were based entirely on the assumption that political parties would not exist -- and became partially or wholly useless when they did. For instance, the Framers assumed that it would be very easy to get 2/3 of the Senate together to impeach and remove an overbearing President from office -- because he would have no party allies in the Senate to block such a move. When George Mason objected to giving the President unlimited pardoning power on the grounds that he might use it to cover up his own crimes by pardoning crooked underlings, Madison replied that the Senate would surely immediately impeach and remove any President who acted in such a suspicious manner. Surprise, James!

In fact, that mistake of theirs came within a hair of destroying the US twice in its first two decades -- once when the Presidential election system jammed up in 1800 because it had been designed on the assumption that parties would not exist (we were wihin three days of Inauguration Day, and a civil war, when Adams finally decided to compromise and allow Jefferson) to be officially selected); and once because the Framers had actually assumed that the Nonpartisan Congress would be the final arbiter of the constitutionality or unconstitutionality of laws -- they created the Supreme Court literally as a minor afterthought during the last few days of the Convention. Naturally, after the partisanship of Congress threatened disaster on this front, the acceptance of the "Marbury vs. Madison" decision making the Court the final arbiter of constitutionality instead was necessary, as the final emergency software patch to make the US system of government work (sort of) until now.

But a great deal of our supposed Success Due To The Brilliance of Our Constitution has really just been due to long-time non-legal, informal consensus by the political parties on the limits of their behavior -- and since Bush's entry into the White House, that consensus has been starting to unravel. (I've always suspected that a lot of this was due to the advice of Newt Gingrich -- who, as a political scientist, must know all the weak points in the Constitution that can allow one party to seize semi-dictatorial power -- but I admit that I have no direct evidence of this.) Consider, for instance, the possible ultimate consequences of allowing the Attorney General to be the President's wholly controllable poodle dog (especially when the majority in Congress is also on his side). Or that sinister little clause in Article 3, Section 2 allowing Congress to strip the Supreme Court of its power to review the constitutionality of any law (with a few specialized exceptions) whenever it chooses -- a potential stick of dynamite planted right in the foundations of American democracy, which I believe no one had ever utilized in US history UNTIL the GOP Congress used it to strip detainees of their right to launch civil suits.

Posted by: Bruce Moomaw at November 3, 2007 01:39 AM | Permalink to this comment Permalink

The anti-Federalists have been proved to be correct, again and again in American history: the much-revered Constitution of the United States is a stalking-horse for the rule of the "unitary," iimperial Executive. So it has proven, and so it will continue to be.

I predict that there will be another terrorist attack inside the territorial United States in 2007-08, and that the "emergency" Dubya-monster will declare and that the courts and the Congress will support will "Constitutionally" dictate the "postphonement" of the elections of 2008.

Posted by: digbydolben at November 3, 2007 05:57 PM | Permalink to this comment Permalink

"The question is, how and when will it end?"

What Bruce said.

Don't be sad. It was a decent run, 1789-2001.

David Addington is just the most recent result of what happens when you Fail To Follow Process and leave little items like Article II Powers up for re-imagineering. Kucinich or Paul could win two terms and not even begin to turn black back into white again.

This is just the beginning. The experiment is over. It will be generations before the empire falls.

Posted by: srv at November 3, 2007 06:38 PM | Permalink to this comment Permalink

I don't think we're dead yet -- for one thing, once a majority of the people (as opposed to a small minority) start having THEIR toes stepped on, they'll get mad. For instance, a mid-September Rasmussen poll showed them demanding by 64-16 that the government should have a search warrant to get a list of Internet providers' customers. (I must admit, though, that I'd sleep a little easier if Colorado Springs didn't happen to also be the central core of Christian Right activities in the US, and a huge number of military officers didn't sympathize with them. If we ever actually DO get a military-backed dictatorship, it's likely to be a suicidally lunatic Christian theocracy into the bargain.)

And Bush hasn't done anything yet to compare with Woodrow Wilson's mass imprisonment of thousands of people for having the temerity to oppose the war the country was in at the moment -- which eventually played a part in a gigantic electoral backlash against his party. Or, for that matter, FDR's attempt to get his way not by having a Constitutional amendment passed, but by trying to rig the Supreme Court. But we are certainly in a very dangerous situation, and in very serious need of major Constitutional reforms -- which not a single, solitary Presidential candidate (with the possible exception of Dodd) has whispered a word about so far. And the one thing, I think, that could panic the American people into passively accepting a flat-out police state is the threat of nuclear terrorism -- which, you'll notice, just took another promising stride forward today when the metabolic waste products hit the ventilating apparatus in Pakistan.

Posted by: Bruce Moomaw at November 3, 2007 07:16 PM | Permalink to this comment Permalink

Out of curiosity, why would a poster, under the name "Andy M", post something here entirely verbatim from a post by Andy McCarthy at the Corner?

I'm in shock that Shumer and Feinstein could capitulate to this administration like this. They really won't be held accountable for anything, will they?

Posted by: lewp at November 3, 2007 07:55 PM | Permalink to this comment Permalink

"And that would guarantee that America
would have no confirmed Attorney General
during this time of war."

I'm big baby!
If you don't hire my guy
i'm going to take my ball and go home!

I got pick on in high school
and i was a girlie man cheerleader in college.

Buck you big baby!
Would you toughin up man!
and stop acting like a big baby!

I'm embarrassed for you man.
totally embarrassed for you!
Would you stop all the crying?

I can't stand all these sissies!
How did we get all these sissies
in office?

(How did all these draft dodging hippies
get to run our the country again?)

Posted by: steve real at November 3, 2007 11:46 PM | Permalink to this comment Permalink

For REALLY depressing -- to say nothing of mindboggling -- news on this front, consider the Wash. Post's editorial tonight:

""THE HALLS of Congress are too often filled with cowardice and groupthink. So it is reassuring when not one but two lawmakers show the moral fortitude to defy party politics to take a stand on principle.

"Democratic Sens. Charles E. Schumer (N.Y.) and Dianne Feinstein (Calif.) showed such courage Friday when they announced their support for attorney-general nominee Michael B. Mukasey. Both are members of the Judiciary Committee, which is scheduled to vote Tuesday on Mr. Mukasey's nomination. It is likely that their support salvaged Mr. Mukasey's nomination, imperiled because he would not state outright that the interrogation method known as waterboarding, or simulated drowning, is illegal. While we, like Mr. Schumer, Ms. Feinstein and others, would have wished for such an answer, supplying it would have put Mr. Mukasey in conflict with Justice Department memos that likely allow the technique -- memos that those who may have carried out or authorized waterboarding relied on for legal protection."


As God is my witness, the Post actually says this. The tiny fact that Mukasey had an obligation to give the Senate an honest answer on whether he regarded waterboarding as illegal -- and then to leave it up to them whether or not to confirm him -- seems not to have occurred to it. Not to worry, though: the Post hopefully urges passage of the "National Security With Justice Act", which would forbid waterboarding -- and which, of course, will either be filibustered or vetoed while the Post looks on with startled dismay and clicks its tongue. Where do they FIND the people who write these things? Or do they breed them on special farms?

Posted by: Bruce Moomaw at November 4, 2007 02:07 AM | Permalink to this comment Permalink

Torture from this administration? Perhaps not.

You guys must have missed Condi's recent diplomatic apercu as she assessed Musharraf's martial-law dictates towards the omnipresent extremists in Islamabad.

"The United States "does not support extraconstitutional measures," Rice said from Turkey, where she was participating in a conference with Iraq's neighbors.

Never has irony found a finer moment.

Posted by: reshufflex at November 4, 2007 02:21 AM | Permalink to this comment Permalink

Torture is illegal under US and international law. Schumer is endorsing torture by endorsing Mukasey.

So much for the rule of law.

If Schumer actually votes for Mukasey, he will never get a vote or a dime from me. There will be coal in the stockings for any organization that Schumer represents too.

Posted by: libhomo at November 5, 2007 11:29 PM | Permalink to this comment Permalink

I haven’t posted on this site for some time although I read it frequently and have great admiration for Greg. I am compelled to post here in reaction to the dire prognostications of the demise of this great republic over the issue of waterboarding, an issue whose proportions have been so hysterically magnified that that its perceived magnitude eclipses its reality.

Let me say that many years ago, when I was taking survival training as a diver and not in a military context, I was subjected to what is now called waterboarding. Towels are wrapped around your head and copious cold water is poured through the towels. You can’t breath well as the water cuts off the free air supply. You think you are drowning and the natural survival reflex takes over. With training, you learn to overcome the reflex and regain control. Every Navy pilot and most special forces personnel are subjected to this treatment as part of their training. It ain’t fun, but it is not the end unless they actually do drown you and I suppose that is possible. It did me a world of good as on a subsequent occasion, I lost my air supply about 120 feet down on a sport dive and had to rise under tight control to avoid the bends. I am still alive and kicking.

From my research, and I would invite anyone including my old friend Luka to show me contrary evidence, the only detainee ever waterboarded was Sheik Mohammad, who we all agree was the 9/11 mastermind. It probably scared the poop out of him. Apparently, he wasn’t quite ready for martyrdom or else, was so corpulent that the 72 virgins didn’t adequately appeal and he spilled the beans quickly. With the blood of 3000 on his hands and the possibility of another strike, I guess it was felt that aggressive tactics were appropriate. I would point out that none of the first tier Dems have ruled out torture in this scenario. And, of course, there is hardly a consensus that this technique fits the accepted definition of torture. I haven’t been able to locate any other instance where this technique was used. So to prognosticate the demise of the American Constitutional system over waterboarding is, I submit, a bit rash.

I haven’t heard of a single instance where an American or a person in this country not involved in terrorism has had their emails or telephone communications intercepted without a warrant or has had their front door bashed down in the middle of the night. I am sure that if there were legions of persons listening in on the tens of millions of daily phone conversations, or reading the billions of daily emails, the Gray Lady would have exposed it in a moment. Indeed, the CIA and the State Department have been hard at work leaking everything that might possibly adumbrate the Administration. It ain’t happening folks in anything like the way you are tossing this around.

As any nation develops, there are bound to be Constitutional crises and we have certainly had our share. What is remarkable is that within the Founders’ prescient Constitutional structure, each crises has been resolved and the Republic has endured, and with the sole exception of our Civil War, there hasn’t been blood in the streets despite a well armed militia. Those that believe there is a cadre of military officers thirsting for a coup, or that the military would support a coup by the executive have been watching too many Hollywood movies or smoking too much weed. It isn’t going to happen. This is neither a banana republic nor Amerastan.

I remember during the Viet Nam war, which I strongly opposed, there were dire predictions of the collapse of the US government offered with a degree of confident prognostication and unimpeachable certainty. I recall fellow students babbling on about a revolution and waiving Mao’s red book around notwithstanding contrary advice from the Beatles. Didn’t happen, and the system worked out some of the bugs. Not all, but some of them most certainly. And things continue to evolve.

There will be an election as scheduled, just as there has been every four years since the founding of the Republic. There will be a spirited contest between the two parties and tons of money will be spent. We the people will be subjected to copious quantities of horsepoop and indeed, the flow is substantial already. Dirt will be flung around with abandon. We will be exposed to distorted and twisted TV commercials. Every peccadillo in every candidate’s history will be dredged up, examined, distorted and analyzed. Candidates and their representatives will dream up and implement every conceivable political trick to convince the electorate of their superiorities. In the end, notwithstanding both perceived and real flaws in the system, criticisms of the electoral college, voting by illegals, the consequences of outrageous gerrymandering and so on, someone is going to be elected President and they will take office in due course. Campaign posters will be torn down and thrown away and the button collectors will have a few more to stash away. Then, we will go back to the same old bickering and partisanship that makes current politics so ugly. And it will go on this way for as long as any of us are other than permanently horizontal. You can bet your life on it.

I am not sanguine about the state of the world at this juncture or the effectiveness of the Administration. I sure would like to vote positively for a Presidential candidate rather than as the lesser of two evils. However, I have been dealing with legal matters for nearly 40 years and have always been attentive to Constitutional issues. I have been reading history since I learned to read. In my humble opinion, the perceived crisis is way overblown. The middle will hold and the Republic will endure. It might even be possible to solve some of the more threatening problems.


Posted by: Michael Pecherer at November 6, 2007 11:54 PM | Permalink to this comment Permalink

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Gregory Djerejian comments intermittently on global politics, finance & diplomacy at this site. The views expressed herein are solely his own and do not represent those of any organization.

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