Balkinization  

Tuesday, November 06, 2007

If . . . .

Marty Lederman

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:
I deeply oppose this administration’s opaque policy on the use of torture — its refusal to reveal what forms of interrogation it considers acceptable. In particular, I believe that the cruel and inhumane technique of waterboarding is not only repugnant but also illegal under current laws and conventions. I also support Congress’s efforts to pass additional measures that would explicitly ban this and other forms of torture. I voted for Senator Ted Kennedy’s anti-torture amendment in 2006 and am a co-sponsor of his similar bill in this Congress. Judge Mukasey’s refusal to state that waterboarding is illegal was unsatisfactory to me and many other members of the Senate Judiciary Committee. But Congress is now considering — and I hope we will soon pass — a law that would explicitly ban the use of waterboarding and other abusive interrogation techniques. And I am confident that Judge Mukasey would enforce that law. On Friday, he personally made clear to me that if the law were in place, the president would have no legal authority to ignore it — not even under some theory of inherent authority granted by Article II of the Constitution, as Vice President Cheney might argue.
That all sounds perfectly fine and reasonable . . . except, of course, that no such specifying law will ever be "in place," because the President, devoted to torture and cruelty, would veto it.

What Senator Schumer ought to do, therefore, is simple -- that is, if he truly cares about ending torture and cruel treatment: pledge to vote to confirm Judge Mukasey if and only if -- and after -- the President signs S.1943.

P.S. On the Article II question, Senator Schumer might be mollified by Judge Mukasey's assurances that the President could not disregard statutes limiting interrogation techniques. But the Judge has been strategically quite selective on the basic question. He will not say whether the President can disregard statutes governing electronic surveillance. And he claims not to "yet" have a view on whether Congress has the constitutional power to enact legislation setting a deadline for withdrawal of troops from an armed conflict.

Comments:

Senators Shumer and Feinstein could hold their noses and vote "present" rather than "aye" in committee.
 

Another "if" from the op/ed:

"Judge Mukasey has demonstrated his fidelity to the rule of law, saying that if he believed the president were violating the law he would resign."

If Judge Mukasey is TRULY unwilling to work for a president who is violating the law, you would think that he'd want to determine whether waterboarding is illegal before accepting the job. Mukasey's refusal to do so suggests that he's happy to remain willfully ignorant or pretend that he is in order to be AG.

Schumer's sophistry is disgusting and pathetic.
 

If Schumer is not lying about what Mukasey told him (which is more than a possibility with this two faced Senator who has previously opined in 2004 as to the necessity of torture), then Schumer's latest statements only suggest further that Judge Mukasey does not believe that waterboarding falls under the current statutory definition of torture.

During his confirmation hearings and in his letters, Mukasey claimed that he could not opine on whether waterboarding fell under the current definition of torture because he had not been read in on the facts of the technique. However, he had no trouble telling Schumer that waterboarding would be illegal if Schumer's bill specifically barring the practice were enacted into law. This suggests that the good Judge was avoiding telling Congress in public that their current law does not outlaw waterboarding.

Furthermore, Schumer's claim that he believes waterboarding is currently illegal is not particularly convincing when followed by an argument for enacting a statute specifically outlawing the practice. This suggests that Mukasey also told Schumer in private that the current law does not reach waterboarding.
 

P.S. On the Article II question, Senator Schumer might be mollified by Judge Mukasey's assurances that the President could not disregard statutes limiting interrogation techniques. But the Judge has been strategically quite selective on the basic question. He will not say whether the President can disregard statutes governing electronic surveillance. And he claims not to "yet" have a view on whether Congress has the constitutional power to enact legislation setting a deadline for withdrawal of troops from an armed conflict.

Are you noticing a pattern here?

Judge Mukasey is simply avoiding telling the Senate which must approve him things they do not want to hear.

It is becoming clearer as time goes on that Mukasey does not believe that waterboarding falls under the current statutory definition of torture and avoided giving this opinion to the Senate in public.

If this pattern holds true for the rest of his testimony, it also appears that Mukasey does not believe that Congress has the power to take away the President's power to direct foreign intelligence gathering. Indeed, Mukasey says as much in his letter answering questions on the subject.

The same holds for Congress attempting to take away the President's power to direct the movements of troops.
 

Of course, if Judge Mukasey does not think it it torture under the torture statute or other US federal law - Judge Mukasey is wrong per Evan Wallach's analysis. The passage of an act specifically banning waterboarding is just windowdressing for Senators and Congresspersons who have sold their soul to torture years ago. The effect is to amnesty those who waterboarded and those who ordered waterboarding who will use the new law to argue that it was not a crime when they did it.
Pitiful, absolutely pitiful.
Schumer wrestled with his conscience and once again he won.
Best,
Ben

Best,
Ben
 

Benjamin Davis has it right. Shumer's comments are fatuous. There's no need for a new law "banning this and other forms of torture"; such law(s) already exists. The problem is lack of enforcement, not lack of legislation. Enforcement, you say? Oh yeah, that's the AG's job.

By the way, I STRONGLY oppose any new law banning waterboarding specifically. That would inevitably imply that waterboarding is not torture under current law. Once again, Senate Democrats are demonstrating complete cluelessness.
 

"I STRONGLY oppose any new law banning waterboarding specifically. That would inevitably imply that waterboarding is not torture under current law."

It would also imply that every other form of torture that Bush uses is not torture under current law, and we'd need a new statute for each one. In any case, for each new statute Bush would issue a signing statement saying that he interprets the statute not to interfere with his inherent powers. And he could also come up with new forms of torture. The only way that Congress can stop him is by impeachment.
 

Henry is right. An openly criminal administration must be treated like an openly criminal administration. Let's stop putting our heads in the sand. Schumer and Feinstein, by trying to turn lemons into lemonade, end up by lending legitimacy to the administration's rationalizations for torture. This whole story has been a disaster. Mukasey should never have been nominated in the first place. Now the Senate, though controlled by the opposition party, appears likely to confirm a man who refuses to say that water-boarding and other methods of torture violate the law. This act brings lasting shame on the United States -- not to mention that it allows our government to go on torturing people just as before.
 

mark field said...

By the way, I STRONGLY oppose any new law banning waterboarding specifically. That would inevitably imply that waterboarding is not torture under current law. Once again, Senate Democrats are demonstrating complete cluelessness.

Talk about cutting off your nose to spite your face.

If your true goal was to ensure that waterboarding was outlawed rather than scoring partisan political points, enacting more specific laws would be a no brainer.
 

No that is not true Bart. Enacting new laws that have the effect of amnestying prior acts is the problem. Once prosecutions of all those under the current law was done, I would be open to a new law - not before. We are not idiots.
Best,
Ben
 

Even though Bart quotes Mark Field's statement, he ignores it. The statement explicitly gives a reason, other than scoring partisan political points, that he opposes a statute banning waterboarding specifically: it "would inevitably imply that waterboarding is not torture under current law." But which side is motivated by scoring partisan political points? Would I be overly generous to Republicans to suggest that they would not support torture if Bush were not a Republican? Or do they sincerely believe in torture?
 

If your true goal was to ensure that waterboarding was outlawed rather than scoring partisan political points, enacting more specific laws would be a no brainer.

I'm game.

I propose we ban:

1). Repetitive comments.
2). Trite comments.
3). Comments already beat to ground.
4). Repetitive and trite comments.
5). Repetitive comments already beat to ground.
6). Comments intended to obfuscare.
7). Comments intended to distract.
8). Comments intended to obfuscate and distract.
9). Repetitiive coments intended to obfuscate.
10). Repetitie comments intended to dustract.
11). Repetitive and trite comments intended to distact and obfuscate already beaten to ground.
etc., etc......

Once we've done that, I'm quite sure we'll be protected from any forms of thread sabotage and hijacking ... as long as we made sure we covered all the bases, and there's no "loopholes" that certain people bent on havoc can utilise....

You get the idea...

Cheers,
 

Oh, yeah, silly me:

Why not just ban "torture" on this thread?....

Cheers,
 

benjamin/henry:

As a matter of law, simply amending the torture statute does not waive liability under the previous version of the statute.

As a matter of legislative history, none of the sponsors of the Schumer bill are admitting that waterboarding does not fall under the current version of the statute. Rather, this is simply being pitched as a clarification

This is really all about partisan talking points. Even though amending the statute will not have a legal effect, it will undermine the partisan political claim that the current statutory definition of torture was clear and the Bush Administration violated the statute by waterboarding KSM and two other al Qaeda terrorists.
 

-- As a matter of law, simply amending the torture statute does not waive liability under the previous version of the statute. --

.

Without confronting the narrowing that results from the use of the word "waive," one should note that the war crimes statute was amended in 2006, at the behest and insistence (veto threat) of the administration, with a particular requirement being that the statutory definitions of war crimes be back dated in order to (at least attempt, if not obtain) avoid criminal liability for cruel and inhuman interrogation techniques.
 

There is a way to word a waterboarding statute so as not to give rise to any argument that the statute proves waterboarding was legal before:

(a) The United States Congress finds that the practice of "waterboarding" terrorism suspects constitutes a form of torture that is and has been prohibited by the UN Convention Against Torture and US statutory law;

(b) Solely for the avoidance of doubt, because some commentators and officials have contended that international and US law does not ban waterboarding, Congress finds that more specific language is required on this subject;

(c) Title 18, section _#($*#$, United States Code, is hereby added, reading [add language prohibiting waterboarding here]
 

There is absolutely no need to pass a law to outlaw something which is already illegal under several statutes besides the torture statute:

18 USC § 113 (Assault)

18 USC § 1201 (Kidnapping)

18 USC § 2441 (War crimes)

10 USC § 897 (Unlawful detention)

Senator Schumer is being silly,and Judge Mukasey is entangling himself in a criminal conspiracy. There simply is no reason to confirm any nominee -- let along one for the post of AG -- who refuses to obey the law.
 

charles gittings said...

There is absolutely no need to pass a law to outlaw something which is already illegal under several statutes besides the torture statute:

18 USC § 113 (Assault)

18 USC § 1201 (Kidnapping)

18 USC § 2441 (War crimes)

10 USC § 897 (Unlawful detention)


How do thesel laws apply to the overseas wartime detention and interrogation of foreign unlawful enemy combatants?

It is perfectly legal to detain an enemy combatant of any type for the duration of a war, so kidnapping and unlawful detention do not apply.

It is perfectly legal to assault and even kill enemy combatants of any type during a war. These default rules of war are suspended only to the extent required by the laws of war for captured enemy combatants.

This leaves the War Crimes statutes and gets us back to the definitions of torture and CID which would be the subject of the bills seeking to expressly outlaw waterboarding.
 

Dilan is, of course, right that it's possible to craft a statute which wouldn't have the implication I suggested. I have zero confidence that the Congress will pass and the President will sign such a law.
 

Under the "be careful what you wish for" category, the Dem House leaders offered Kucinich's motion to impeach Vice President Cheney for a vote on the floor. They hoped to appease you folks with a vote, which they figured would lose badly after the GOP and Dem Blue Dogs voted it down.

Ooops. Boy, did they miscalculate!

Nearly all of those GOP House rascals joined Kucinich's merry band of impeachers to toss this grenade onto the conference table of John Conyer's Justice Committee. Conyers used to be an impeachment true believer until the grown ups in the party power structure got to him. Now he gets to live his dream, and Pelosi and Hoyer's nighmare, of running an impeachment investigation.

Be sure to call or write the members of the Judiciary Committee to conduct a very thorough public investigation into next summer and then to send Articles of Impeachment to the floor of the House for a debate and full recorded vote.

I am sure the voters back home will be very interested in how their representatives vote. Indeed, I would dare say that such a vote would swing the election.

This should be exceedingly amusing...
 

This should be exceedingly amusing...

See Arne's ban, #7.
 

Baghdad, why are you now blocking dissenting opinions from your blog?
 

bartbuster said...

Baghdad, why are you now blocking dissenting opinions from your blog?

The cursing, name calling and non topical nonsense has been removed and will not be allowed in the future.

The dissenting topical posts remain and are welcome in the future.

If your entire contribution is limited to the former, then look elsewhere to post.

If you want to argue topically and politely, you are welcome to do so.
 

Re the Kennedy bill Marty cites, S. 1943 I am puzzled by the meaning of Section C, which provides:
"(c) APPLICABILITY. —Subsection (a) shall not apply with respect to any individual in the custody or under the effective control of the United States Government pursuant to a criminal law or immigration law of the United States."

Does this simply mean that the prohibitions re treatment and interrogation in this bill already exist for "any individual in the custody or under the effective control of the United States Government pursuant to a criminal law or immigration law of the United States"?
 

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