Balkinization  

Saturday, November 03, 2007

Lucy, the Football, and Charlie Schumer

JB

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Sounds good, no? But as Marty has pointed out, Congress has already passed such laws and Presidents have signed them. It is illegal for U.S. officials to engage in torture or cruel, inhuman and degrading treatment of detainees.

If what Judge Mukasey told Senator Schumer is true, why can't he say that waterboarding is illegal? If he has pledged to enforce laws that bind the President, why can't he pledge to enforce laws that are already on the books? If he is being honest about his intentions to leave office rather than defend law breaking, why is he accepting a job that will require him to defend the Administration's lawless positions? For if one thing is certain, it is this: Dick Cheney is not likely to change his mind either about Presidential power or about waterboarding.

Which leaves us with this question: Who is the bigger fool, Judge Mukasey for making these representations or Senator Schumer for believing them?



Comments:

"Who is the bigger fool, Judge Mukasey for making these representations or Senator Schumer for believing them?"

me.

for having thought that senator schumer might care about torture, detention, kagaroo courts or even the truth.
 

I'm not quite sure this is 100% fair. I think what Schumer is saying is that, EVEN THOUGH Mukasey is being completely foolish to not unequivocally state that waterboarding constitutes torture, this is an acceptable failure since Congress can still pass a law that, while unnecessary, specifically includes waterboarding in the definition of torture. At that point, Mukasey would feel that such a law is binding on the President, and given that a different appointee to the position might not even concede that much, let's take what we can get.

Now, I still think that's a problematic position, since I don't think anybody would be surprised if Bush were to veto such a law, and then Bush (and Mukasey) would be left with a stronger argument that waterboarding is not legally torture, and we'd be stuck in the same position. So, yeah, Schumer's probably still wrong, but I don't think he's wrong in quite the way you're saying he's wrong.
 

Can we take anything that any politician says at face value? Schumer may have some other reason for voting for torture. I have no suggestions, however, as to what it might be.
 

Perhaps the bigger fool is anyone who thinks the current statutory structure is at all clear.

The 2004 memo applying the torture statute pointed that out that it is scientifically impossible to objectively define severe physical or mental pain.

The NYT article interviewing the OLC and Justcie lawyers noted that no one in the Executive can figure out the parameters of the torture statute.

The Senate long ago acknowledged this in presenting multiple bills calling for specific techniques to be banned.

The WP picked up on the problem when it called for the adoption of the detailed standards in the Army Interrogation Manual.

From Schumer's statement, it appears that Mukasey may have pointed this fact of life out to the less than swift Schumer during their recent private meeting.

Perhaps, one day, the hate Bush crowd will catch on as well.
 

DROP BY DROP:
FORGETTING THE HISTORY OF
WATER TORTURE IN U.S. COURTS
[pdf]

By Judge Evan J. Wallach
 

DROP BY DROP excerpt:

Synopsis: Historical analysis demonstrates U.S. courts have consistently held artificial drowning interrogation is torture which, by its nature, violates U.S. statutory prohibitions.

. . .

IV

The Texas Water Torture Case

In 1983, the [Reagan] Department of Justice affirmed that the use of water torture techniques was indeed criminal conduct under U.S. law. Sheriff James Parker of San Jacinto County, Texas, was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions.

. . . United States District Judge James DeAnda’s comments at sentencing were telling. He told the former Sheriff that he had allowed law enforcement to “...fall into the hands of a bunch of thugs....The operation down there would embarrass the dictator of a country.,” Ex-Sheriff Given Ten Year Sentence, New York Times, 27 October, 1983 (emphasis added)

V

Conclusion

One can only hope Judge DeAnda was right, and that even a dictator would find water torture an embarrassment. Certainly, the United States has made it clear, in its courts, both civil and military, and before the national legislature, that water torture, by whatever name it is known, is indeed torture, that its infliction does indeed justify severe punishment, and that it is unacceptable conduct by a government or its representatives.


hmtl version, here
 

"the hate Bush crowd"

Bart's implication, of course, is that we have nothing to complain about; we just have an irrational hatred of the man. It may surprise him, then, that I don't hate Bush, and I suspect that many if not most who are distressed by what Bush has turned this nation into feel the same way. Bush is not worth our hate; he is literally beneath contempt. Now Lyndon Johnson might have been worth our hate, but Bush is nothing but a stupid frat boy with a strong streak of sadism. I hope that he is tried and convicted of war crimes and spends the rest of his life in prison, but I hope for this solely for its deterrent effect and so that the U.S. might begin to win back the respect of the civilized world. I have no wish to punish Bush, as I do not think that he is capable of learning anything; I have no doubt that he will go to his grave certain that history will vindicate him.
 

Forget about actually performing the procedure, wouldn't the mere threat to do something the person believed was torture be illegal?

Maybe instead of torture, we should call this personalized terrorism.
 

Certainly Judge Mukasey is no fool. Of course he may comfortably say he will enforce all laws that bind the President. All members of this administration beleive that no law actually binds the executive at all, laws regarding such being infinitely plastic and dependent on whatever exception the executive chooses to claim.

Any member of the administration gets with the program or is damn quiet ( saving his principled, but silent, opposition for the forthcoming book ).

Schumer is either a fool, deeply cynical or his pride is more important than his conscience.
 

henry said...

"the hate Bush crowd"

Bart's implication, of course, is that we have nothing to complain about; we just have an irrational hatred of the man.


Actually, the point is that Marty and many others here would rather maintain against all reason that the torture statute is clear so that they can claim that Bush broke it, rather than admitting that the statute is too vague to be useful and advocating legislation which would clearly outlaw the techniques which they believe are torture.

When you cut off your nose to spite your face, the hatred involved is generally considered to be irrational.
 

As I tried to point out on another thread, there is no ambiguity with regards to "what should we not do to prisoners?" except to those who wish to see it, in order that they may justify that which is self-evidently repugnant. It is clear: lay no hand on a captive. Except where a captive becomes aggressive or violent, where one must act to defend oneself or others, treat him as you would like yourself to be treated, or your beloved dad or brother or son.

Once you begin, once you even so much as slap a prisoner, or subject him to duress of any kind, there will be those who will argue that such and such techniques, no matter what they may be, are not beyond the pale, do not go beyond reasonable limits, do not constitute torture.

The ambiguity that seems to so bedevil Bart is easily removed by recognizing that any treatment of distress imposed on a captive goes too far, is beyond the pale, exceeds reasonable limits.
 

Robert,

Thank you. Somehow the dialog here (and in the US in general) has devolved from "we don't torture" to "well, that's not torture" or "what is torture?" or "I've been through worse".

The discussion has moved far to the authoritarian side by recurring bleating of "ticking time bombs" and "its ok, because the bad guys do even worse things", even though the imagined scenarios only exist in Tom Clancy novels and bad movies, requiring the deus ex machina of "necessary" torture to save the day.

Instead of Schumer and Feinstein saying that this is the best we'll get so they have to go along, they, and the rest of the Senate, should demand better. Then Bush can show his leadership and willingness to compromise by, say, actually compromising, as opposed to saying "I'm willing to compromise, so give me what I want or the terrorists will win."

It's been like watching game theory run wild; the Bush team continually chooses the negative option, so that when the Democrats choose a positive one, they score big. The Dems just need to keep choosing negative until the BDS sufferers realize that to score they have to actually give a positive response.

I don't hate the sinner; only his sins. It's just that there's so damn many of them.
 

Nobody expects the Spanish Inquisition!

How easy we forget though.
Do Senators Schumer and Feinstein understand that during the Spanish Inquisition both Jews as well as Muslims were waterboarded? That means the Senators would have been considered targets of the Church, who only wanted to save their souls, and make sure their conversions were pure. But today they signaled that they would vote for an Attorney General who can't say that this action is torture. Well I hope Mukasey can tell the difference between cremation when it is done to a dead body rather than a live one, without having some briefing from the Prophet in Chief.
 

The NYT article interviewing the OLC and Justcie lawyers noted that no one in the Executive can figure out the parameters of the torture statute.

That goes without saying. Anyone who could was immediately fired. But a hint for them if they need it: "If it feels good, do it...."

Cheers,
 

The 2004 memo applying the torture statute pointed that out that it is scientifically impossible to objectively define severe physical or mental pain.

Typo there:

"The 2004 memo applying the torture statute alleged that out that it is scientifically impossible to objectively define severe physical or mental pain."

But then again, they're maladministration hacks and flunkies, not scientists.....

CHheers,
 

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