Media attention to the Senate confirmation hearings of Attorney General nominee Michael Mukasey has focused on the retired judge’s refusal to give an unambiguous opinion that waterboarding is a form of torture and illegal. But, according to this commentary from The Nation, that obscures the bigger problem with him:
Is this man acceptable as USAG? And, if not, should be be confirmed anyway, just because he’s the best sort of nominee we can hope for from this Admin and he’ll only be in office a year anyway?
I don’t know that’s he’s worse than Gonzalez. Gonzalez was actively working with the Administration to destroy the DoJ. At worst, I think Mukasey will step aside and let the Administration run roughshod, but won’t actually work with them (if they’d even let him…he’s not one of the inner circle).
But I still think the Dems should gut this nomination. Let Bush recess-appoint him. I don’t even care about that, because he probably IS the best possible nominee we’re going to get out of this White House.
But IF the Dems capitulate and confirm Mukasey, they’re basically officially getting behind the idea that the president is above the law and that torture is okay. That’s not acceptable to me (and a lot of other people). If our country’s whole government suddenly decides that the rule of law is an inconvenience and torture’s not so bad, after all, what the hell do we have left?
Better yet, how about “Waterboarding is torture, because we prosecuted the Japanese for using it in WWII, and because we deplored its use by the Khmer Rouge, and because we prosecuted one of our own officers in the Phillipines for using it at the beginning of the last century”?
When did we start splitting hairs about what torture is, Bricker? When did we start needing to? Is there anything this administration can do that would make you turn around and say, 'Whoa…that may be a little extreme!"? Or is anything all right with you as long as they can sprinkle the thinnest of legalistic sophistry over it?
If I had to define it, it would be anything that causes unnecessary pain to a person in captivity. But is isn’t my job to define it- the administration should tell us exactly how they define it and where they’re drawing the line. Water boarding isn’t torture? OK, I’ll buy that if Bush has it done to him on live television.
Back to the OP- the nomination should be rejected and Congress should meet as often as needed so that Bush can’t slip this in as a recess appointment.
And the lousy part of my exchange with Bricker was that I allowed him to completely derail my point, which is that it’s not even the torture/waterboarding waffle that I’m that horribly worried about, but Mukasey’s contention that the president has extra-constitutional powers if national security demands it. No. He doesn’t. Period. Because if he does, then suddenly everything the president does is going to be vital to national security…oh, wait. Why does that sound familiar?
It’s obvious to me that Mukasey is spouting talking points given to him directly by the administration. Of COURSE he’s going to stand up for Bush’s right to do whatever the hell he wants. So will any nominee the White House sends up the Hill. Which is why none of them should be confirmed.
But that’s not a reasonable definition or a reasonable test. Solitary confinement is appropriately used for prisoners in our federal penal system. But I cannot say, “That’s torture, because President Bush won’t undergo it on live television.”
There are plenty of permissible applications of force to persons in captivity that cause pain. If you believe our penal system shoudl eschew them all… then all I can say is I hope Democratic candidates at all levels of government adopt your view and push for it publicly; it will keep all branches of government Republican for a comfortable stretch.
As someone who has a great deal of respect for your intelligence, Bricker, I’d like to ask you to provide an example of an application of force that would (in your esteemed opinion) simultaneously be permissible, and cause unnecessary pain [to a person in captivity].
ETA: no fair postulating that the victim of the pain, by virtue of not enjoying it, believes it to be unnecessary. Objectively unnecessary, if you please.
Are you saying that waterboarding is permissible under US law? Could it be used on suspected criminals? On convicted criminals? On prisoners-of-war? On people held captive by the CIA in some back room in a foreign country? On US citizens? On aliens?
As I understand Mukasey’s comment, he was not saying a thing about “extra-Constitutional” powers.
I also find rather remarkable the reverence you have suddenly spouted for the limits of the Constitution’s authority. When it comes to finding a clear-cut right to abortion in the language of the Fourteenth Amendment, you were perfectly happy to support the position that such a thing existed.
In any event, Mukasey’s position is that a law, passed by Congress, cannot intrude upon the Article II authority of the President. This is not “extra-Constitutional” authority.
Now, the problem arises because some of the powers of the President that Mukasey is claiming exist are not precisely spelled out in Article II, but rather flow from a reading of it… they “emanate,” we might say. They exist in the “penumbra” surrounding Article II.
In MY ideal world, anyone making such a claim about any part of the Constitution should be roundly mocked.
But it strikes me as being hypocritical in the extreme for you to support the idea that the Constitution has whispy, ghostlike extension into the Fourth Dimension whenever you fancy the direction these extensions are going, and then turn around and reject it when it’s not an idea you like.
In any event, this is essentially moot: the U.S. Senate Judiciary Committee advanced Mukasey’s nomination, which all but assures him of confirmation.
Yet that is often what it is. Is a cramped cell torture? For some people, no, by any objective measure. Yet when I was in one for a mere two days during survival school under controlled conditions, due to my size I was about to go stark raving nuts.
I think we can all concede that tying someone up and sodomizing him with a broomstick is torture. I think we can all agree that breaking random bones is torture. There are some things that go without question. There are others that are not quite that simple.
With regard to Mukasey: does it really matter anymore? Every time someone is nominated for anything he is portrayed as worse than the guy before him, as if that’s even possible anymore. Who cares? In a little over a year it’s all over anyway, they could nominate me for Attorney General for all the difference it would make. President Bush will do what he wants no matter who the AG is, be it Oliver Wendell Holmes, Hanoi Jane, Bozo the Clown, or the guy who hands you the towels to dry your hands with in the bathroom of the local upscale steak house.
Yes, “unnecessary” is the key word here, isn’t it?
We could discuss tasering a prisoner who refused to exit his cell. That’s permissible, in my view, and highly preferable to subjecting corrections officers to threat of physical attack. But that makes the pain almost by definition necessary.
The same logic applies to any permissible application of force. The pain applied by any method is necessary (and permissible) when it’s proportional to the desired outcome, designed to inflict no lasting physical damage, and when a less painful alternative capable of reaching the same desired outcome does not exist.
I can’t respond to you the way I want to in GD, and I don’t have the eloquence to make a Pit Thread just to insult you. But know that I take back, right now, every defense I’ve ever made for you on this board. Every. One.
Not that you apparently care. Your morals are all legal opinions.
And what desired outcome, may I ask, is waterboarding capable of reaching that no alternative can? Because if you intend to answer “extracting information”, I’ll need to see your cites that torture or near-torture or the-torture-that-dare-not-speak-its-name or whatever you want to do actually are effective at extracting true information.
I personally think any genuinely honest assessment of such practices as water boarding, sleep deprivation, mock executions, prolonged stress positions, and exposure to extreme temperatures will conclude that they all qualify under said definition.
Mukasey may not have been overtly complicit in empowering the US Government to justify its sanctioned use of torture methods like Gonzales was, but his unwillingness to call a spade a spade (waterboarding=torture) is cowardice of the first degree, and a thoroughly transparent CYA effort by the administration. Purely on principle alone, he shouldn’t be confirmed.
Would every Bush nominee take the same position? Probably. But this should be a line in the sand, and I would prefer Bush to take his typical end-around approach toward getting his own way than for even a few Democrats to give tacit approval of such posturing.
Your well-taken point aside, my specific question did not address waterboarding. I was tempted, myself, to raise the same cavil, but I supposed that might give Bricker an opportunity to accuse me of “moving the goalposts.”
It occurs to me that if “unnecessary” muddies the discussion with vagueness, “permissible” does the same with tautology. Thank you for your response, Bricker.
This is not a discussion of morals. It’s a discussion of legal issues. Your own comment was:
If you wanted to have a discussion about the morality of this issue, we certainly can. But here’s the problem: you, Mukasey, Bush, and I don’t all seem to share the same idea about what is moral. I have a definite set of ideas on morality, and I would be most pleased if we were to accept my ideas as the basis for governmental exercise of power. (And for what it’s worth, I would absolutely forbid waterboarding as a matter of moral wrong if given the power.)
But you don’t seem to be willing to cede power to me to impose my moral rule on the government… and in retaliation, I am not willing to cede such power to you.
Instead, I’m willing to accept the results of the system we’ve all agreed to in place of this: a system in which each person gets a vote, those votes elect leaders, and those leaders make laws. It’s not as good as winning the day with my moral compass in charge, but it’s a fair compromise, understanding that this way everyone has a shot at contributing to the rules.
Now you come along and say, in effect, that you’re fine with the system as long as it’s generating the results you wish. But when it generates results you don’t like, you start calling for a do-over, an extra bite at the apple, another method of reaching decisions.
Sorry. That’s not gonna fly. You wanna run things by moral rule? Fine. Put me in charge of the moral rule. Because I don’t accept you in charge of it. So we’re at an impasse… one that’s broken by adopting pretty much exactly the system we have right now.
In all fairness, Bricker, jayjay was responding to this:
This is exactly what I would expect a no-conscience, semantic-loving, partisan asshole to say. "Worried about abandoning the rule of law? Dismayed at the sanctioning of torture? Outraged by the moral cowardice of our elected officials? Afraid for our country’s slippery-slope sliding into greater authoritarianism?
Well, who gives a shit? You lose! Suck on it."
Now, are you a N-C, S-L, P Ahole? I don’t think so, based on your history.
But in that one post, you came across as a snot, thoroughly consistent with our current administration’s tendency to thumb their nose at anyone who gets upset when Bush & co. exercise their “executive priviledge” to ignore Congress, the Constitution, and/or the will of the people. These individuals tend to hide behind fear, the flag, and their own pathetic rationalizations that clearly displace commonly-accepted morality (torture=bad) with legalistic parsing.
Although I don’t believe that to be your position, I don’t blame jayjay for getting that impression from that particular comment.
In fact, no matter how often I’m reminded that on-line interactions lose a certain tone or inflection, I can only say in my defense that the “So there,” that ended that post was more of a coda to the “… Constitution has whispy, ghostlike extensions…” business than the actual fact of confirmation.
If I were to rewrite it, I might say something like: But it strikes me as being hypocritical in the extreme for you to support the idea that the Constitution has whispy, ghostlike extension into the Fourth Dimension whenever you fancy the direction these extensions are going, and then turn around and reject it when it’s not an idea you like.
But this is essentially moot: the U.S. Senate Judiciary Committee advanced Mukasey’s nomination, which all but assures him of confirmation. Much like the end result of Constitutional penumbras and emanations, this is a victory of results over ideal process - and in my view, someone who has championed results over process before is not entitled to complain when the dog he’s permitted to bite his foes now turns around and bites him.
So there.
If that STILL seems rude, then I guess I’ll have to accept that judgement. But my “So there” was not intended to blindly cheer for the result; it was intended to highlight the rather odd inconstancy of supporting a method only when it delivers you what you wish.
Rude? No. Legalistic*? That’s our Bricker! 