No need for apologies. I’m jaded with our government. It was just so depressing to hear most of the Senate chastise Mukasey right before they accepted him for the job. I don’t see the point in these proceedings.

Posturing doesn’t solve problems. You can’t pretend to be a democrat once in a while, back flip on all all your rhetoric and compromise far, far away from what you wanted. It’s pretty shameful how Obama, Clinton, Biden and Dodd didn’t even vote in that decision.

Part 4 of 4

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not “cruel treatment” under Common Article 3 (even though it is, by Mukasey’s own lights, “cruel”–go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey’s letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where “current law” would (and would not) prohibit waterboarding.
The United States position staked out by Mukasey & Co. is simple enough. We can waterboard, or use other torture techniques like long-time standing, stress positions, hypothermia or sleep deprivation in excess of two days, and it’s just fine. But if other governments use these techniques on Americans, we’ll say that’s torture. How appealing. Gone is the day of a “decent respect to the Opinions of Mankind.” And in its place comes “if the president does it, then it must be legal.” Is it any wonder that Mukasey struggles so painfully to keep this opinion under wraps? Former Deputy Attorney General Comey, who saw the opinion, said that when it was published it would prove extremely embarrassing to the Justice Department and the United States. That assessment is certainly correct. And now we can add: it will further damage the reputation of Michael Mukasey.

Skipping to..

Leaving aside the torture issue for a moment, Mukasey was also asked to address the fashion in which the Executive ran roughshod over FISA.

Here’s the exchange with Senator Specter:
SPECTER: Is there a legitimate argument that the President has Article II powers to undertake such conduct?

MUKASEY: There are a number of concepts in your question, including whether he has authority to undertake torture. Torture as you know is now unlawful under American law. I can’t contemplate any situation where this president would assert Article II authority to do something that the law forbids.
But of course, the newspapers are full of examples in which the president has done exactly that. In fact we can start with the Signing Statement issued by the White House just forty-eight hours ago in connection with the National Defense Authorization Act. He invoked his Article II authority to refuse to implement four sections of the act.  One of these provisions prohibited any permanent bases in Iraq, and several others provided for the accountability of contractors guilty of criminal acts, corruption and fraud. So the “high purpose” for which Bush purports to wield his commander-in-chief power is akin to the conduct of a mob boss. He seeks to shield contractors who are guilty of violent crimes and ripping off the federal treasury from inquiry and oversight. He applies the core concept on which he governs: the principle of non-accountability. And that’s precisely what Mukasey “can’t contemplate.” This is of course not to address the FISA itself, which the Bush Administration did knowingly violate, as Specter quickly pointed out.

The full article at Harper’s Magazine on line.

Part 3 of 4

But let’s get to what Mukasey really means when he says “reasonable minds can differ.” It sounds civil and amiable. But it’s just the opposite. What he’s saying is that the White House and he will decide what the law is, and they’ll act according to their secret understandings. But he’s not going to be held accountable on any of this to Congress. He treats Congress as if they were spectators, not legislators. He forgets that they have a charge to keep under the Constitution. They make the law, or so they think. But they also have oversight over the conduct of the Executive Branch. The essence of Mukasey’s response is therefore quite simple—the President determines and enforces the law; the President makes the law. Congress may not like this, but that hardly matters because Congress has been emasculated. In sum, Mukasey has taken the old legal indeterminacy argument to its Schmittian conclusion.
Waterboarding provides a good starting place for analysis. The second day of Mukasey’s confirmation hearing was dominated by this issue, and Mukasey used a series of tenuous dodges to avoid giving a straight answer to a simple question: “Is waterboarding torture?” In the letter which provided a sort of prologue to the hearing, Mukasey stated:

“If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

Again, the starting point is a “reasonable minds can differ” premise.  And then a disaggregation—there are some circumstances in which it would be prohibited, and others where it would be a “close question.” Will Mukasey explain to us what these “circumstances” are? He refuses.  It is revealing that Mukasey states, just as National Intelligence tsar McConnell did a few days ago, that waterboarding would be torture if it was done to him. This is very revealing of the rationale and why Mukasey is withholding it. The distinguishing principle is clear enough: waterboarding is lawful if the president has authorized it.  And it is lawful on the principle that the president, as commander-in-chief, can do as he likes and is not bound by any laws enacted by the Congress, by the Constitution or by international laws.  During his first day of testimony, Mukasey repudiated this line of reasoning. But at this point, that repudiation seems about as sincere as the promise that Mukasey gave the second day that he would be happy to respond to questions after he had assumed office as attorney general and been “read in” to the program. It turns out that his answer is that now he had indeed been “read in,” and he has formed an opinion, but he has no intention of telling these meddling senators what it is.

Marty Lederman is, I believe, correct on the broad outline of the secret opinion that OLC has authored and that Mukasey has now embraced.

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not “cruel treatment” under Common Article 3 (even though it is, by Mukasey’s own lights, “cruel”–go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey’s letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where “current law” would (and would not) prohibit waterboarding.

TBC

Part 2 of 4 cont..

That thesis sprang to mind listening to Michael Mukasey testify in the Senate Judiciary Committee today. Time and again he lectured the senators that “reasonable minds could differ about these matters.”
As debating style goes, this was the acknowledgement of a position so weak that it was barely intellectually tenable. Steven Bradbury and I are reasonable people, he seemed to say, and we disagree with you. And no, we’re not going to tell you what we think or present the series of legal steps by which we got there. If we did, you’d only embarrass us further. We’ll keep quiet, thank you. Here’s Yale Law Professor Jack Balkin’s summation of the Mukasey testimony:

You’re crazy if you think I’m going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal. Saying that would suggest that people in the Administration violated the law and are subject to criminal prosecution, and that previous OLC opinions have condoned war crimes.  The only thing I will tell you is that I sure hope we don’t continue one of these practices in the future (lucky for me you haven’t pressed me about the others!). But don’t ask me to say that the President can’t do any of them later on if he wants to. I mean, come on, guys, I just got here, you know? I just put new drapes in my office. I really don’t want to have to get fired only three months after I started. Oh, and by the way, the President, my boss, never violates the law. Got that?
Writing at Slate, Dahlia Lithwick, very much on target, tells us that the proceedings can be summed up by the mutually effusive expressions of thanks coming from the senators and Mukasey, followed by Mukasey telling them all to “go to hell.”

More and more frequently, we hear members of the Bush Administration crying about the evils of “lawfare”—the notion that foreign policy gets decided in courts, and government actors are paralyzed by future legal liability and unable to act boldly to protect us. You’d think the answer would be to clarify for those government actors what the rules are, so they might conform their behavior to protect themselves. But in the new Bush/Mukasey construction, rules tip off the enemy, so it’s better to make them up in secret as you go along.

Watching Mukasey was a painful experience. What the public hoped for with his appointment was simple enough: that someone would occupy the office of attorney general who possessed integrity, common sense, independence and the basic skills that accompany a sound legal mind.  The essence of what a lawyer owes his client is independent professional judgment.

Elihu Root, a close friend of Theodore Roosevelt’s and one of the titans of the New York Bar, put it bluntly and in terms that could not be better suited to the current predicament. “About half of the practice of a decent lawyer is telling would-be clients that they are damn fools and should stop.”
The Senate Judiciary Committee put Michael Mukasey to the test yesterday. And he left the hearing room as an embarrassment to those who have known and worked with him over the last twenty years, and who mistakenly touted his independence and commitment to do the right thing, come what may. On the other hand, Vice President Cheney, the principal author of the torture system, must be elated and relieved.  Indeed, Cheney’s lawyer Shannen Coffin rushed to National Review Online to give Mukasey’s performance an enthusiastic seal of approval.

Mukasey flunked the simple test that Elihu Root posed for all lawyers:  he doesn’t have the gumption to tell the president that his torture program is unlawful and needs to be shutdown. Moreover, he’s fully bought in to the cover-up.

TBC

EXpat,

I’m not trying to answer for Aegrus or anything, but...I at least, do understand the grumpiness. As much as it pains me to admit it, WE ARE responsible for what is in office.

And, I say “We” even though I’ve had the same responses to it all. So WHAT if bush threatened ‘us’ with..."Take Mukasey, or no one. Who CARES if we didn’t have an AG? NONE was better than Gonzo, and NONE would be better than Mukasey. NO President would be better than George, and NO Cheney would be better all the way around.

NO leadership is better than a FASCIST DICTATORSHIP!!!

So, even though I say ‘we’ it is only because as an alleged democracy, we are responsible for whom we select as our representatives, and we’ve failed to put accountable people in those positions. And, when they’ve committed treason against us, (which is all of the time now) we haven’t removed them.

I don’t know what more the dissenting Senators could have done at the time of the Mukasy confirmation. (It’s like you said, why put the fox in the hen house to begin with, and then try to get him out?) It’s an oxymoron.

On the other hand, within the system, what would it have taken to prevent it? It would have taken those 60 plus Senators who voted to confirm him, to say NO!! Find us somebody else, or we’ll just not have an Attorney General. The ones who are questioning him now, are the same ones who voted against his confirmation to begin with. So no, I don’t understand it either.

The bottom line would seem to be that we have to rid ourselves of the rot at the foundation. If we have member states who send rotten leaders to our Congress (House or Senate) than what does it take to fix things at that level?

I’m as guilty as the rest, because Nancy Pelosi is from my own state. I actually voted for her. Now of course I know that she must go, because she’s standing in the way of what we should have done long ago, which is to impeach the poison at the top. So, I sign every petition for impeachment that comes along, but it’s not enough, unless we get rid of her, as well as all of the others who stand in the way, or fail to represent the interests of ‘we the people’.

I’m not sure what else to do, other than to try to try to bring about the awareness. I mean, at the end of the tube, it all comes back to us - collectively. If this many of us fail to recognize that we’ve been under siege, for at least 7 years, then I don’t really know what more there is to say.

I’ve attached a piece that a colleague shared from Haper’s Magazine, by Scott Horton, in the No Comment section. I don’t have a link, and there is only room for the intro and last paragraph here. I’ll try to find the link to the rest…

‘Reasonable Minds Can Differ’
DEPARTMENT No Comment
BY Scott Horton
PUBLISHED January 31, 2008

“In the view of Carl Schmitt and other critics of traditional
liberalism on the European hard right (though later picked up and
echoed by some in the critical studies movement on the American left),
the liberal system produced hopeless legal indeterminacy. Who could
say what the law was? Reasonable minds could differ, and so could
reasonable judges. The liberal approach encouraged tolerance,
flexibility, openness, but all of this served to strip it of its
fundamental purpose, namely supplying rules for decision which would
guide merchants in their business dealings, the state as it addressed
matters affected by a public interest and individuals pursuing their
private dealings. This was hopelessly inefficient.”…

Never mind….I’ll post the rest of this in a 2nd part. It’s worth reading, in reference to Mukasey’s testimony today.

To be cont..

Sorry for my un-necessarily terse reply; I’m a grumpy old man and this stuff burns my fanny.  To wit: We must hold our elected officials responsible for their own actions.  When playing with a rattlesnake, if one gets bitten, one can’t blame the snake; it’s their nature.  Muckasey is Muckasey and Bush is Bush; they will do as their nature dictates, but, they can only do so at our pleasure.  So, what happened to our advocates?

Six months is not long enough for a probationary period. When I worked in corrections for the state, we have a whole year of probation. We shouldn’t let these political appointees attain permanent position for the duration of their terms on only a 6 month litmus test. It’s to easy for liars to put up their false fronts for such a short amount of time, the longer the probation time, the easier it is for them to slip up.

Besides, would the country have stopped functioning if the Muckman(Mukasey) have not been gifted with this job? They should have let the spoiled brat, “The Little Cocaine Cowboy” hold his breath in a temper tantrum if he couldn’t have had his way again. Such a pathetic excuse as a president and person(well sort of) as well.

Valuable time past...one doesn’t put the fox in the hen house and then try to figure out how to get it out!  If one doesn’t hold the politicians responsible from the get go then forget it!  Dumb ass Bush?....No, dumb ass citizens for allowing this to happen.  Aegrus, you need to get a life and smell the coffee burning!  Threatening to not have an AG?  So what?  Thats like saying I’ll put a gun to your head but there will be no bullits in it!  So What?  We are gutless wonders.................uuuuuughhhh…

We all knew Mukasey was bad news, but he was allowed to be AG because of dumbass Bush’s threat of not having anyone in the position if Mukasey wasn’t accepted. Now they want to grill him and get him to change his mind? How pathetic and ineffective a thing is that to do? This is valuable time which could be used to IMPEACH BUSH AND CHENEY!

-America First

Actually G.,

He hasn’t changed. He was a dirty bastard when they hired him. We all knew it. Leahy knew it. (but he didn’t try to lobby any of the other Senators, beyond his own speech). Ted Kennedy spoke out loudly and passionately against confirming him. So did Bernie Sanders.

There were a few others...just not enough. Because, there were some taitor turncoat dems that DID confirm him. Diane Feinstein. (Time for her to go - and I can help with that). Schumer...same for him, except I can’t do anything about him. I’m in California. Then there was the worthless Senator from Louisiana, can’t remember her name right now, but you know who I’m talking about. Starts with an L. (I’m having a senior moment).

And there were others. So, they ALL need to go. I’m with Expat. They need to pass a 6 month probation at least. One screw up, (like a vote to confirm an AG who won’t admit that waterboarding is torture, because it would mean that his bosses would be liable for high crimes, which we should still charge them with) and they’re gone...out the door, no benefits, no retirement, and no unemployment insurance.

Seriously...that’s what we should do. There’s no reason why these ladies and gentleman can’t be replaced just as quickly and easily as any other worker. Time to bust up the “Union” in Congress, and put some scabs to work...we could pay ‘em less, and they’d do a better job.

I know a whole bunch of unemployed folks who know as much or more about the workings of Congress than any of them do, and their loyalties are to whomever will feed or pay them. That’s US.

I’m sure everyone’s done this, when you’ve applied for a job. You go in, you smile, nod your head, you play the part, you act like you’d do anything for your soon to be boss.

But then, after you start getting comfortable a bit, after you’ve been hired. You start turning into a diferent creature all together.

A this point I would say that Mr. Mukasey looks a lot like a white worm with glasses and a tie, that’s just crawled out of rotten apple.

Yes, he wore his power tie to the meeting.

Well, he’s managed to still be the AG, and at least 60 senators confirmed him for the job. SO, maybe he’s smarter than we think.

Criminals and gangsters generally are.

He’s just a gangster and a criminal, like the rest of his gang. They wouldn’t have put him in the job otherwise.

^ change the law governing senators and congressmen so they all have a 6 month probationary period and then a vote of confidence as to whether they keep their jobs.  At this time they just aren’t accountable for their rotten performances.  Hell, I want me one of them there jobs like that.

^ why Mukasey was confirmed.  Surely everybody who was paying attention saw this coming.  We have every right to be outraged over what “our” repre (choke, gag, gasp) sentatives (cough) did and every damn one of then should pay with their jobs.  Screw Mukasey; fire the god damned politicians.

When Muckman(muckasey)took this position, he promised up uphold the Constitution, even over Bush’s wishes. But, since he is Bush’s choice, the writing was on the wall before he was given the job, people claiming HOW HONEST HE WAS AND THAT HE WOULD UPHOLD THE LAW OF THE LAND. His evasiveness is obvious he has failed already in doing this and if he were a “regular” working person, would be fired by his employer for inferior job performance.

Watching this weasel on the news, he displayed such nervousness in trying to pretend to look at and shuffle his paperwork on the table in from of him.  He obviously knew how guilty his whole “interrogation” looked to the watching world. He is as evil and corrupt as the one who selected him for this job.

Since he continues to evade this question of torture, before he is questioned next time, torture him with the same type used on the people that has been used in the last 5 years. Several days before his next interview, have him snatched and given the same treatment 24/7 and then question him. Maybe this will help him to finally decide if this is torture. If he still persists in this evasive attitude, start the torture over again, only extend it by several years.

All intentional infliction of pain or discomfort, in the process of interrogation, should be (and probably already is) illegal.

Certainly, water-boarding is “cruel and unusual” and therefore violates the Bill of Rights.

If it’s okay for us to water-board and torture, then it’s okay for any enemy to do the same to us. Do you want to see your son, serving in the military, water-boarded by the enemy? Doused with water and kept in a cold room? Stripped naked and subjected to sexual humiliation?

That’s the modern USA, folks. It’s embarrassing to have to argue against this type of monstrous behavior.

Torture is not very useful for gaining information, the CIA tells us (google Ray McGovern if you doubt this), but it is useful for extracting “confessions”. The Soviets used it to that end. Now we are doing the same thing. Observe that we had one supposed “Al-Qaeda #2 Man” confessing to everything from 9-11 to causing tooth decay. Big deal.

The fact that America uses torture is proof that we are an infantile, cowed, immoral nation. That we are splitting hairs about what is obviously torture demonstrates the same thing.

Am I part of the “blame America” crowd?

I am now.

WATCHED AS MUCH OF THE HEARING AS I COULD STAND..SEEMS EVERY QUESTION WAS CLASSIFIED, ON GOING TRIAL, GET BACK TO YOU ON THAT, OR HAVE NO KNOWLEDGE OF THAT.....MUKASEY REMINDS ME OF MISTER MAGOO, BUT NOT AS SMART.