Balkinization  

Tuesday, October 23, 2007

A Welcome Senatorial Challenge

Marty Lederman

This is a terrific letter to Judge Mukasey from the ten Democrats on the Senate Judiciary Committee, basically daring him to continue to express agnosticism on the question of the legality of waterboarding.

Most distressing thing about it: No Republican signed.

Potentially the most intriguing: If Mukasey now does not publicly agree that waterboarding is unlawful, could (principled) Dems who signed a letter such as this really vote for him?

Here, by the way, is an excellent column by Phil Carter and Dahlia Lithwick on the subject. The one thing they don't quite get right, I think, is their speculation about why Mukasey would not simply say that waterboarding is unlawful. I don't think it's "secrecy" or an obsession with preserving "absolute authority." (A statement that waterboarding is illegal wouldn't reveal any secrets. And there's no reason to think that Mukasey is committed to preserving the right to use any and all methods of warfare.)

The real explanation lies in the quote that Phil and Dahlia include at the end of their piece: Mukasey's revealing testimony that "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." Mukasey can't say that waterboarding is unlawful because OLC has already opined -- several times over, apparently -- that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.

Just a reminder: How did OLC conclude that waterboarding was lawful?

Well, it's not a violation of Common Article 3's prohibition on cruel treatment because, under the MCA and the President's recent otherworldly executive order, CA3 is misconstrued to be coterminous with the McCain Amendment.

And it doesn't violate the McCain Amendent's ban on cruel, inhuman and degrading treatment because, well, it doesn't shock Dick Cheney's conscience (see more here).

And why isn't it just plain ol' torture, as the U.S. has formally insisted for over a century? Because, even in its new-and-improved 2004 torture memo, OLC simply conjured up a statutory limitation out of whole cloth (that "severe physical suffering" requires "a condition of some extended duration or persistence"), precisely to be able to say that waterboarding isn't torture.

Comments:

Prof. Lederman:

A statement that waterboarding is illegal wouldn't reveal any secrets. And there's no reason to think that Mukasey is committed to preserving the right to use any and all methods of warfare.

Let me play "Bart" here for a second: I don't think that's entirely correct. In fact, there may be some 'utility' to keeping the exact nature of one's limits under wraps. One might in fact do better if one lets the 'enemy' think one is (or even just "might be") the 'biggest and baddest bully on the block' and that there's nothing one wouldn't do. It's a form of poker, and I'm sure it's used a bit in foreign policy (not to mention in terrorist attacks, hostage taking, and other such psychological ploys).

As I'm sure that "Bart" would agree, refusing to say what your limits are may act as a deterrent or sufficient threat to get what you want.

That's the theory, at any rate. Of course, the other side plays poker too, and they are free to make their own evaluation of your 'resolve', and will do so, regardless of what you tell them.

Of course, if you are willing to do anything (and really mean it), the expected behaviour (vis a vis deterrence or threat, as opposed to the respect and comity of your civilised allies) would be for you to just come out and tell people that fact up-front (see, e.g., "Dr. Strangelove"). And wouldn't the 'enemy' know that? Even if they didn't, I expect they'd find out soon enough....

But looking at the morality of it all, we need to step back and look at the bigger picture: Isn't the (implicit) threat of being willing to torture -- or at least projecting the image of such -- in exactly the same moral cabinet as is the implicit threat of death (even if not actually intended) that is produced in the course of "waterboarding"?

Cheers,
 

The single question in the letter will be very difficult to weasel around, except of course, if the answer is not responsive. "Is waterboarding illegal under US law, including treaty obligations?"

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Hats off to the Senators for asking the direct question.
 

The senators' letter is terrific, except for one thing: the comment, "It is surprising that you are unfamiliar with waterboarding." Mukasey was obviously lying when he said that he was unfamiliar with waterboarding, and the senators, in the interest of retaining their self-respect and regaining the public's respect for the Senate, should have called him on it. In fact, that lie by itself is a sufficient basis to reject him.
 

I realize that the senators may have been sarcastic when they wrote, "It is surprising that you are unfamiliar with waterboarding," but sarcasm is not an adequate response to lying under oath. It is, in effect, winking and telling Mukasey that they will let him off on that, at least if he comes around on the substantive question.
 

arne:

For once you do not misrepresent my position. There is a utility to keeping the enemy guessing how far we would go and that utility is two pronged.

First, the enemy cannot prepare for what it does not know.

Second, the enemy will assume the worst because that is how they treat prisoners. An enemy being brought into interrogation assuming the worst is terrified and extraordinarily grateful when he learns that we aren't going to do to him as he does to others. This oftem makes him vulnerable to our standard techniques. Indeed, the vast majority of the captured enemy broke under standard interrogation.

BTW, arne, aren't you going to get in trouble with Marty for mentioning my name? You know what happens when you break the shunning.
 

It is, in effect, winking and telling Mukasey that they will let him off on that, at least if he comes around on the substantive question.

Alas, that sounds like a fair trade.
 

Professor Lederman:

Mukasey can't say that waterboarding is unlawful because OLC has already opined -- several times over, apparently -- that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.

More likely, Mukasey is dodging telling the Senate that waterboarding is legal under their own statutes. Mukasey told the Senate that he would not declare waterboarding to be illegal just to be congenial. That implies that he believes the reverse and is not willing to change his opinion to suck up for confirmation.
 

From Carter's and Lithwick's article:

What is it about waterboarding that Mukasey found so compelling? On Thursday, he offered the tired argument that we are facing a new type of super-enemy, one resistant to regular coercive interrogation but not to waterboarding. As he put it, "What the experience is of people in the Judge Advocate General's Corps has been with captured soldiers, captured military people from enemies we've fought in the past, may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person."

Indeed. A "very different kind of person". Not a nice European Nazi, hell, not even an inscrutable but ever-so-polite Jap, but an Islamo-Fascist Ay-rab, who even believes in a different Gawd than we do. They not only hate us, but they have the audacity to say we're heathens ... infidels ... and they're sooooooo serious about it they're willing to die under that rubric.

Last time I counted, though, two eyes, two arms, two legs, upright posture, 1400g of brain matter, A, B or O type blood, and forty six chromosomes. Oh, yeah, I forgot. They believe in a different Gawd ... off to the dungeon with 'em and let 'em rot in Hell....

Cheers,
 

"utility" (n). A pithy and shorter way of saying "the ends justify the means" without having to even demonstrate that such actually pertains.

Discussed in rather more circumlocutious fashion by one humble IANAL above, but obviously not comprehended by all.

Cheers,
 

… sarcasm is not an adequate response to lying under oath. It is, in effect, winking and telling Mukasey that they will let him off on that, at least if he comes around on the substantive question.

I agree 100% with Henry. The cleverness smacks of cynicism. One never wins at this game with the present administration and those it serves up. In fact they thrive on it. In the end it's a loser's way of saving face. The telling is lost in the wink. He won't come clean unless told outright that he's about to be axed.

I would however have let Mukasey confess to being a fool instead of a liar, reminding him that the office he seeks requires someone who is neither, having just rid itself of a man who was both. I would then predict his rejection absent a credible third alternative for his bizarre behavior. Only then will this particular charade draw to a close.
 

Marty: I don't think it's a terrific letter. I think it's a terrible letter. It fails to ask Judge Mukasey for a clear statement that other methods of torture (or "cruel treatment" for the verbally squeamish) are also illegal -- methods such as forced standing, stress positions, sleep deprivation, blaring music, and hypothermia. Mukasey refused to answer this question at his hearings, which is another reason why is he completely unacceptable for the AG position.

Is this the new compromise being offered by the Democrats -- we'll let you equivocate on the other torture methods so long as you draw the line at water-boarding? If so, it's a rotten compromise.
 

Mukasey is a shuttlecock between President Bush and a Senate that has a love/hate relationship with itself. Congress has set up a statutory scheme, partly in deference to the executive and partly in deference to "no waterboarding here" McCain, that does not admit a clear answer.

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I've argued that the Senate/administration statute stands as a substantial barrier to criminal prosecution of waterboarding as a war crime. Others point to the same statue I do, or past US judicial findings, or the Charming Betsy principle as applied to the Geneva Convention and international law, as clearly prohibiting waterboarding.

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And there sits Mukasey, with a panoply of arguable propositions before him, asked to choose between an administration that wants no liability for waterboarding, and a Congress that aims to avoid taking a stance on the subject.

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Wicked fun to watch the pack of liars.
 

-- I think it's a terrible letter. It fails to ask Judge Mukasey for a clear statement that other methods of torture (or "cruel treatment" for the verbally squeamish) are also illegal --

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It's a tactical choice, to push on a ground that one thinks is clear, before moving to other grounds. Senator Kennedy introduced an amendment that aimed to outlaw certain methods. The amendment named waterboarding. If it had named ONLY waterboarding, the proposed amendment would have put the Senate on record. But his proposal also aimed to outlaw "lesser" offenses, and was voted down.

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I said at the time, Kennedy made a (I think deliberate) tactical error. If he was FOCUSED on waterboarding, he would have named ONLY waterboarding.
 

One might in fact do better if one lets the 'enemy' think one is (or even just "might be") the 'biggest and baddest bully on the block' and that there's nothing one wouldn't do.

Arne, I find the deterrence component of your argument truly bizarre. Al-Qaeda is a death cult. They are truly unlikely to be deterred from committing terrorist attacks by the thought that, if they get captured, some nasty procedure might be used against them.

There is, of course, at least some benefit in maintaining a level of ambiguity so that you don't write the enemy's training manual for them. But even if were established with ironclad certainty that we never engage in torture of any type, there would still be a very wide range of interrogation techniques we might employ. The bad guys will hardly know the entire playbook.

Perhaps more importantly, when we lead our enemies to believe that we are capable of any inhumane act, we lead our friends to believe the same thing. We cannot maintain the moral high ground necessary to lead the world forward if it is commonly believed that we engage in immoral practices.
 

Here is the tactical "genius" of Senator Kennedy -- putting "forced nudity" on a parallel with waterboarding. Such idiocy in standing for an anti-torture position has to be deliberate.

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S.Amdt.5088

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(D) should any United States person to whom the Geneva Conventions apply be subjected to any of the following acts, the United States would consider such act to constitute a punishable offense under common Article 3 and would act accordingly. Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.

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Rejected on a 46 - 53 vote

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I'm not defending any of these practices, by the way. But I am criticizing the politician, for making a mockery of line drawing.
 

This comment has been removed by the author.
 

What is the point of the letter in terms of Mukasey's confirmation? If he were to agree with the senators that waterboarding is illegal, then does he get confirmed even though he believes, not only that some other forms of torture are legal, but that Bush is above the law? Surely that is the implication.
 

Arne, I find the deterrence component of your argument truly bizarre. Al-Qaeda is a death cult. They are truly unlikely to be deterred from committing terrorist attacks by the thought that, if they get captured, some nasty procedure might be used against them.

How do you figure? Does the willingness to die relatively quickly by plane crash or bomb detonation in order to receive rewards in the afterlife necessarily imply willingness to endure a life of prolonged pain, suffering, and hopelessness? I'm not advocating for the threat or actual use of torture; I'm just questioning the notion that being an Islamist proto-martyr means that one is also volunteering to happily endure any and all torture. And, of course, the question of how willing the likes of UBL and KSM are to be martyrs themselves instead of just ordering others to their deaths is an open question.
 

If he were to agree with the senators that waterboarding is illegal, then does he get confirmed even though he believes, not only that some other forms of torture are legal, but that Bush is above the law? Surely that is the implication.

How so? I would think the implication would be that whatever legal reasoning leads to the conclusion that waterboarding is illegal would also need to be applied to other forms of torture to decide their legality, not that those other forms would necessarily pass unquestioned.
 

This comment has been removed by the author.
 

Steve said...

Perhaps more importantly, when we lead our enemies to believe that we are capable of any inhumane act, we lead our friends to believe the same thing. We cannot maintain the moral high ground necessary to lead the world forward if it is commonly believed that we engage in immoral practices.

Yet another reason why this should not be a matter for public discussion.

Discretion appears to be yet another casualty of our political blood sport.
 

cboldt said...

Mukasey is a shuttlecock between President Bush and a Senate that has a love/hate relationship with itself. Congress has set up a statutory scheme, partly in deference to the executive and partly in deference to "no waterboarding here" McCain, that does not admit a clear answer.

And there sits Mukasey, with a panoply of arguable propositions before him, asked to choose between an administration that wants no liability for waterboarding, and a Congress that aims to avoid taking a stance on the subject.

Wicked fun to watch the pack of liars.


Not if you are the shuttlecock Mukasey.

And people wonder why well qualified people refuse to serve in this snake pit.
 

I suggest that "qualified people" choose not to serve in the "snakepit"--to the extent this is true, and I do agree it is so to a degree--because they fear that they will be forced to lie; to swallow their own convictions and sell out their principles in order to satisfy their corrupt and politicized bosses; to become complicit in policies which they cannot change and which are abhorrent to them; to become complicit in acts--which derive from the aforementioned policies--taken by our government against citizens here or persons abroad which are likewise abhorrent to them, and possibly criminal; and so on.

In other words, we all see that persons in government who speak the truth, borne of deep convictions or from long experience and expertise, are castigated, ostracized, censored and fired when their expertise clashes with the policy objectives of their employers...and they're poorly paid, to boot, as compared with what they might earn elsewhere. Why would any but montebanks, scoundrels, sadists, criminals, perverts and dissemblers serve in government today?
 

Mark wrote, " I would think the implication would be that whatever legal reasoning leads to the conclusion that waterboarding is illegal would also need to be applied to other forms of torture to decide their legality, not that those other forms would necessarily pass unquestioned."

That would be logical outside the context of the letter. But the letter addresses only waterboarding, and, if Mukasey replies that he agrees that waterboarding is illegal, I do not think that the senators would write another letter about other forms of torture, and yet another about Mukasey's claim that Bush is above the law. I think, rather, that the senators would be so gratified by a concession on waterboarding that they would let the other matters pass. They would not want to look "unreasonable" by objecting to Bush's fundamentally changing our system of government, after all.
 

But the letter addresses only waterboarding, and, if Mukasey replies that he agrees that waterboarding is illegal, I do not think that the senators would write another letter about other forms of torture, and yet another about Mukasey's claim that Bush is above the law. I think, rather, that the senators would be so gratified by a concession on waterboarding that they would let the other matters pass.

Even this would represent a significant step forward for the Senators. A sad commentary, but all too true.

The question in my mind is what these Senators will do when Mukasey fails to provide an unequivocal response. Will they refuse to confirm him? Or will they accept some weasilly statement as evidence that Mukasey is "different"? I fear it's the latter.
 

To reply further with perhaps a less broadly cynical statement than my previous one, I'll ask:

Why would Judge Mukasey feel any compulsion to hedge or obscure his true legal opinions when asked them? Why would any appointee ever feel such a need? Presumably they're being picked for public service--serving we, the people, after all--due to their experience and expertise. If they feel they must dissemble or otherwise obscure their honest opinions they must assume their actual expertise may hinder their appointment. Why would someone of integrity be willing to do this? Do they need the government job so badly? Judge Mukasey is apparently a respected (and employed) member of the judiciary; does he covet the AG position so dearly that he is willing to compromise himself to obtain it? Is he willing to pretend to an ignorance no one accepts as genuine or to put forth non-answers to questions we know he has opinions on merely to serve as AG? If so, what does this say about him? What does it say about anyone similarly asked to answer such questions and who chooses to be less than bluntly forthcoming?
 

I want to follow up on Henry's smart comment. Mukasey should not be attorney general, because he refuses to state whether various actual forms of torture are illegal. The Democrats' letter only asks him to come clear on water-boarding. Why? One suspects that some Democrats on the Judiciary Committee don't think that Mukasey's equivocations, on forms of torture other than water-boarding, should block his confirmation. That ambivalence about stopping torture brings shame on the entire Committee.
 

To answer Robert Cook's question about why a person seeking to serve "we the people" would dissemble about his opinions, it is that he is arrogant and has no respect for "we the people." We the people, as represented by the senators on the Judiciary Committee, are too stupid to know what's good for us, and, if we require nominees to play a silly game of testifying under oath as to their beliefs, that doesn't mean that a nominee need take the game seriously. The senators have the same attitude; they believe that we need them in office but that we would be too stupid to recognize that if they stood for any principles.
 

Steve:

[Arne]: One might in fact do better if one lets the 'enemy' think one is (or even just "might be") the 'biggest and baddest bully on the block' and that there's nothing one wouldn't do.

Arne, I find the deterrence component of your argument truly bizarre....


You should have read my entire comment. I do as well. I was just playing "Bart".

... Al-Qaeda is a death cult. They are truly unlikely to be deterred from committing terrorist attacks by the thought that, if they get captured, some nasty procedure might be used against them.

I agree. I was just putting forth the "utilitarian" 'argument' for "keeping a sealed lip". Of course, the real argument for "keeping a sealed lip", as it is with the wiretappng, is to cover up executive law-breaking.

There is, of course, at least some benefit in maintaining a level of ambiguity so that you don't write the enemy's training manual for them....

Even that's arguable. Perhaps better, if you think that throwing them off the track is gonna work, to simply lie about what you'll do. Everyone knows that the "... will not confirm or deny" is relatively transparent and it's primary effect it to avoid an outright loss in a court of law.

Perhaps more importantly, when we lead our enemies to believe that we are capable of any inhumane act, we lead our friends to believe the same thing. We cannot maintain the moral high ground necessary to lead the world forward if it is commonly believed that we engage in immoral practices.

Agreed. I think I alluded to that as well: "(vis a vis deterrence or threat, as opposed to the respect and comity of your civilised allies)"

Cheers,
 

cboldt:

S.Amdt.5088

(D) should any United States person to whom the Geneva Conventions apply be subjected to any of the following acts, the United States would consider such act to constitute a punishable offense under common Article 3 and would act accordingly. Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.


GC CA3 bans both torture and "cruel" and "huminliating and degrading treatment":

a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

I don't see a problem, if we're trying to mainain adherence to GC CA3, in banning "forcing the person to be naked", particularly when such is a very humiliating act for a person of the Muslim faith (and where the U.S. has been alleged to have done this, with that very purpose in mind, apparently).

Cheers,
 

And people wonder why well qualified people refuse to serve in this snake pit.

"[W]ell qualified people" ought to know WTF "waterboarding" is (not to mention its legal pedigree), and possibly even have an idea of what the Prize cases holding was, when they cite it.

Cheers,
 

It's obvious Mukasey lied, but he lied in the time honored fashion of the nomination kabuki.

He was really saying, I don't want to answer that, please confirm me anyway.

The Senate has now signalled, We will try to prevent your nomination if you don't answer us.

Marty hit the nail on the head when he said this boils down to war crimes and who else will end their career in disgrace due to the Bush administration's love of power and lack of ethics.

The Senate has thrown down the gauntlet. Hell, they may confirm anyway even if he comes out for it, but it seems clear they are not going to roll over on his refusal to answer the question.

And this is the key question, Do we allow torture to continue and its perpetrators to go unpunished, Or do we reverse course and take the painful steps to clean house.

Torture needs to be repudiated and those responsible punished.
 

Mark Field said...

The question in my mind is what these Senators will do when Mukasey fails to provide an unequivocal response.

Who says they really want an answer?

Don't get fooled by the Kabuki dance. It is the appearance of a fight which they are after. Just by asking the question, they are pandering to their base.

My labor law professor used to tell us stories of what she called the labor negotation Kabuki dance which goes on in NYC.

The city and the union usually come to a deal some weeks before the dealine over drinks at a restaurant or bar.

However, each side wants to make their constituents think they are fighting for them. Consequently, they will go through the Kabiki dance of stormy negotiations, perhaps followed by a short strike and capped off with a dramatic "last minute" deal.

The whole thing is a charade, just like our confirmation battles.

Robert Cook said...

Why would Judge Mukasey feel any compulsion to hedge or obscure his true legal opinions when asked them? Why would any appointee ever feel such a need?

So he will not embarass the Senate by pointing out that the current legislation is so vague that it permits nearly anything.

Jamie Mayerfeld said...

The Democrats' letter only asks him to come clear on water-boarding. Why?

Because they are playing to their constituents, most of whom are lucky if they have heard about waterboarding on the news. Blogs like these are the exception, not the rule.
 

[Mark Field]: The question in my mind is what these Senators will do when Mukasey fails to provide an unequivocal response.

["Bart"]: Who says they really want an answer?


They're not Republicans, they're all Democratic Senators (much to the shame of any Republicans on the committee).

"Bart" misattributes the nihilism of the Republican party (see, e.g. Boehner's faux 'outrage' at MoveOn and Stark, but not Limbaugh) to others. I think in this he is mistaken. Fortunately. "24%"....

Cheers,
 

Bart, quoting me and then offering a reply, said:

"'Robert Cook said...

Why would Judge Mukasey feel any compulsion to hedge or obscure his true legal opinions when asked them? Why would any appointee ever feel such a need?'


"So he will not embarass the Senate by pointing out that the current legislation is so vague that it permits nearly anything."

Really, Bart? Really? Do you think he is concerned about embarrassing the Senate? What about the other appointees who similarly obfuscate and dissemble? Are they also trying to spare the Senate embarrassment?

Aren't you embarrassed at offering such a response?

If Judge Mukasey were truly a man of integrity and honor he would answer honestly, damn the consequences, whether it be a rejection by the Senate or scowls or censure from the Bushies who nominated him. That he plays this obvious game simply reveals his mendacity and ambition, his willingness to compromise his integrity as a lawyer and judge merely to attain the office of AG.

Any appointee who does not offer forthright, clear, and unambiguous answers to such questions does so because his desire for the job outweighs his professional pride. In the case of a lightweight, such as Alberto Gonzalez, one can understand such ambition; in the case of a reputedly respected juror such as Mukasey, one must wonder at how little intellectual and ethical conviction he and others in public service possess.
 

Another thing:

[Mark Field]: The question in my mind is what these Senators will do when Mukasey fails to provide an unequivocal response.

["Bart"]: ...

My labor law professor used to tell us stories of what she called the labor negotation Kabuki dance which goes on in NYC.

The city and the union usually come to a deal some weeks before the dealine over drinks at a restaurant or bar.


Oh, yes, matters of law can just be hashed out in glad-handing negotiations in smoky back rooms (not to mention the fact that "Bart" accepts this anecdotal account as being accurate even for labor negotiations).

"Bart": "I say we just rip his liver out through his throat if he doesn't talk!"

human: "What?!?!? You can't do that! That's depraved and ghastly!"

"Bart": "OK. Let's split the difference and just pull out his fingernails. Can I buy you a beer?"

See the problem? Somehow I suspect that "Bart" has forgotten his profession ... or maybe it just ain't what he says it is.

Cheers,
 

Robert Cook:

Really, Bart? Really? Do you think he is concerned about embarrassing the Senate?

No. And that should suffice for an answer to many questions.

Cheers,
 

Arne Langsetmo said...

[Mark Field]: The question in my mind is what these Senators will do when Mukasey fails to provide an unequivocal response.

["Bart"]: Who says they really want an answer?

They're not Republicans, they're all Democratic Senators (much to the shame of any Republicans on the committee).


You cannot be that naive.

This is the same Dem party that puts up the appearance of a fight in Iraq, FISA and every other national security bill and then caves at the last minute.

Exactly why wouldn't they do the same thing on the issue of interrogation?

Charlie Brown, how many times does your Lucy party have to pull the football away before you wake up to what is really going on?

How many times have the Dems told you one thing and then voted another way?

Get real. You are being gamed - successfully, it seems.
 

Robert Cook said...

RC: Why would Judge Mukasey feel any compulsion to hedge or obscure his true legal opinions when asked them? Why would any appointee ever feel such a need?'

BD: "So he will not embarass the Senate by pointing out that the current legislation is so vague that it permits nearly anything."

Really, Bart? Really? Do you think he is concerned about embarrassing the Senate? What about the other appointees who similarly obfuscate and dissemble? Are they also trying to spare the Senate embarrassment?


My friend, why would Mukasey want to embarrass the prima donna, intellectual light weights in the Senate who have to approve his nomination?

When you go in for a job interview, do you spend your time correcting the mistakes of the interviewer?

Judge Bork went that route in his hearings, utterly thrashing the Senators who generally had no idea what they were asking about. You tell me how well that job interview went.

Consequently, is it any surprise that Mukasey, like any other person interviewing for a job, speaks in pleasantries and tries to give the Senators what they want to hear and nothing they do not.

You folks take this political theater far too literally.
 

Whatever its merits in other contexts, the "utility of not revealing your limits" theory -- AKA the "the bossman is crrazee" theory -- really does not work vis-a-vis waterboarding. The "utility" or crazy bossman" theory would have it that terrorist suspects shouldn't know that they arent' actually going to be drowned, or else the "technique" won't be effective any more. But that notion runs aground on the fact that it is widely known what this technique consists of -- the simulation of drowning which causes basically autonomic responses in the brain, i.e., fear of impending, unpleasant, death by drowning. And it's been known for years -- centuries in fact -- but it is still used and considered by sadists from the inquisition forward to be "effective." Why? Precisely because the technique sets off autonomic gag and fear reflexes. It doesn't matter if the victim somehow "knows" intellectually that he or she is not in fact going to be drowned. His or her brain reacts automatically. Indeed, the CIA's tests on willing subjects -- who themselves can be assumed to have understood that they were not going to be drowned -- showed that they lasted about 14 seconds on average before breaking down.
I think the "utility" theory odious in any event, but it is amusing to note that it is completely meritless on its own terms as applied to waterboarding.
 

"Bart" DePalma:

[Arne]: They're not Republicans, they're all Democratic Senators (much to the shame of any Republicans on the committee).

You cannot be that naive.

This is the same Dem party that puts up the appearance of a fight in Iraq, FISA and every other national security bill and then caves at the last minute.


As opposed to the Republicans that overtly and proudly oppose any limitations on the lawlessness of the Chimperator-In-Chief. No "caving in" for them, noooo, they're proud to have gone over to the Dark Side (with the exception of sleazeballs like Specter who makes grandiloquent noises about his outrage and concern, and then goes ahead and votes the Republican party line). But I'd note that most of the signers of this letter have been opposed to the war in Iraq, gutting FISA (nine of the ten signers voted against the PAA), and the other excesses and blunders of the maladministration. You misattribute their stance and misstate their actions here, "Bart". But that's OK for someone living an a fact-free world.

Cheers,
 

Ginger Man:

I think the "utility" theory odious in any event, but it is amusing to note that it is completely meritless on its own terms as applied to waterboarding.

In presenting the "utility" theory, I noted that fact. You don't want "ambiguity" under that theory. You want to be the biggest, baddest guy on the block, and you'd even want people to think you will kill them without batting an eye (and have killed others). Anyone that watches telly knows this; it's a recurring theme in all kinds of dramas -- the poor victim with the shaking gun, etc......

As I said, the "ambiguity"'s only use is to prevent a legal admission and outright loss in a court of law. The "we can't let them know our methods" stuff is codswallop for small minds and true believers.

Cheers,
 

Bart said:

"My friend, why would Mukasey want to embarrass the prima donna, intellectual light weights in the Senate who have to approve his nomination?

When you go in for a job interview, do you spend your time correcting the mistakes of the interviewer?

Judge Bork went that route in his hearings, utterly thrashing the Senators who generally had no idea what they were asking about. You tell me how well that job interview went.
"

Apparently Bart thinks or pretends to think I accept his rationale for Judge Mukasey's mendacity and obfuscation, that he prefers to spare the Senate "embarrassment," and that my question has to do with WHY Judge Mukasey would be so concerned.

No.

My question was rhetorical in nature, as I'm sure Bart knew, and amounts to a "What the @!X**%?" response to his ludicrous justification.

HOW would honest answers by Judge Mukasey to the questions put to him embarrass the Senate? Of course they wouldn't, but would probably embarrass either Judge Mukasey himself (if his honest answers were to reveal that his views were antithetical to the Constitution) or to the Bush Administration (if he were to hold himself to his oath and to the Constitution and repudiate the Bush Administration's rape of our Constitutional Republic).

By his own performance Judge Mukasey has revealed his own unfitness to serve in public office.

This goes to my original point: such men as Mukasey place their own ambition above their integrity or professional ethics, choosing, as they do, to equivocate or to pretend to views they don't hold or ignorance that is not genuine merely to secure a coveted postion, and acting contrary to professional ethics once they secure the position merely in order to satisfy their corrupt paymasters and thus hold on to the job they have corrupted.

As for Bork, he hardly embarrassed his questioners, but he did reveal through the honest expression of his radical views his unfitness to serve on the Supreme Court. Of course, this is what such confirmation hearings are meant to determine, and I'll give Judge Bork credit for at least being forthright in his responses. Again, this goes to my original point: better to maintain your integrity and answer honestly even if it loses you the job than demonstrate to the world your own corrupt nature by dissembling under oath.
 

Giuliani chimes in, in his ever-so-huggable way:

Questioner: "He [AG nominee Mukasey] said he didn't know if waterboarding is torture."

Giuliani: "Well, I'm not sure it is either. I'm not sure it is either. It depends on how it's done. It depends on the circumstances. It depends on who does it...."


Guess I missed that subtle distinction in all my law classes and in every ethics class and seminar I've ever been to.

Click the link for more ... if you have the stomach for it.

Cheers,
 

Judge Mukasey isn't a very good Republican, or he'd take one for the team here.

All he has to do is enthusiastically endorse waterboarding, at which point Leahy and the Dems will block his nomination, only to suffer a crushing defeat in the next election once the public realizes they are squeamish about extracting information from our enemies.

At least, that's how things would play out in Bartworld, where the Democrats are regularly dared to have a debate on specific methods and techniques because, in Bartworld, the public is certain to support the Republican position.

But alas, Judge Mukasey wants the job so badly that he's refusing to tell the truth about how awesome waterboarding is. Now we'll never get to have any fun.
 

Just to humour:

Bart: "When you go in for a job interview, do you spend your time correcting the mistakes of the interviewer?"

Actually, yes. I was being interviewed for expertise the company didn't have, and I had no problem correcting their misconceptions about my specialty. They were quite happy to be corrected, and I was hired shortly thereafter (after only sending out 2 resumes).

Perhaps you believe that dishonesty is the best policy in interviews, but I believe in a different ethical standard. Honestly, it's the best policy.
 

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