Balkinization  

Thursday, January 31, 2008

The Low Bar: He Was No Alberto Gonzales

Marty Lederman

That's the best thing the New York Times has to say about Judge Mukasey's "see-no-evil" performance. For other reactions, see Scott Horton, Glenn Greenwald, and former DOJ official Shannen Coffin, who concedes that he "had serious reservations while I served in the administration . . . about appointing a former federal judge so unknown to many of us." After all, you know those federal judges: they've been known at times to think independently and not rubber-stamp everything an executive chooses to do. And heaven knows we don't want that in an Attorney General. What a relief, then, for Coffin, et al., to see Judge Mukasey toe the party line so faithfully: "It is pleasing to be proved so terribly wrong."

Comments:

aside from this the reaction in the media is less than tepid, the story basically has no legs, I guess people are tired of this never ending DoJ saga, wanna have some peace for a while. Which creates some space for Mukasey and his principals to implement their ideas.
 

I found those comments from Coffin very telling, but in part because Coffin was not a DOJ official when Mukasey was nominated - he was OVP Counsel.
 

This was from your first post yesterday based on the AG’s letter sent Tuesday. I think it fits this lastest one at least as well.

“They should insist that the Administration publicly defend the legality of those “harsh techniques” approved for CIA use - make public the OLC opinions underlying the program - & repudiate the critical - & indefensible - OLC conclusion that physical suffering can be "severe" & therefore “torture” only if the suffering is “of some extended duration or persistence as well as intensity."

On the basis that the battleground here falls squarely within the last phrase inquotes I ask now whether it might be appropriate to consider “intensity” to be modified by the opening three words in that phrase – to wit: “of some intensity” or some part of that phrase.

I would think it is not open to debate that the positioning of the phrase “as well as” - appearing as it does both immediately contiguous and precedent to the word “intensity” - was intended to convey its status as a

[or - to avoid any controversy from ambiguity inherent in that word – “one” – as in either “one of two” or “one among more than two” - the residual ambiguity being incapable of resolution internally – i.e. within the boundaries of the lesser phrase currently under analysis - & to remain in said state of irresolution pending identification of the numerical total of distinct elements comprising the larger phrase & both external to & materially independent of the lesser phrase – or - in the event such identification was performed in advance of submitting this lesser phrase to analysis – resolved immediately]

necessary element to determining whether a given wilful act might qualify as a legitimate candidate for serious judicial consideration on the issue of what potential it bears which might contribute to a “positive” determination that an act of “torture” in fact occurred.

Combining that classic tool of statutory interpretation – commonly known as the “purposive” approach - with the overweenie [sic?] impression one gains from the clear preference the framer

[or if multiple ‘framers’] - or definer[s] – or decider[s] [as distinct from ‘founders’ – a.k.a. ‘Founders’]

demonstrates in favor of the substantially more segmented jurisprudential appreciation of the concept
[with the consequent relative subjugation of the markedly more organic array to be derived from arguably relevant passages of the product of diplomatic negotiation]

such that it seems highly improbable that any generous [or wide] stance is appropriate.

Rather - when one beholds with a discretely moderated nearly insignificant degree of enhanced concentration what is wrought from the complementary actions of these orthodox techniques - it is striking how much more likely that the “intensity” of any particular set of facts which might be established to the satisfaction of the lowest common denominator of judicial intelligence & wisdom

[the presence of which is almost invariably amenable to ready confirmation at a glance of the results of a brief search of the membership rolls of the Federalist Society]

is subject to fittingly astringent constraints.

Indeed one feels compelled to this conclusion as if it were an inimitable revelation - & to the conclusion that it ought to apply to this element not less than every other essential to the construct.

Such revelation provides robust support for the presumptive application of even the most superficially disparate qualifier – to be subdued only in the event that in such application an unacceptable level of violence is done to diminish the level of complexity achieved by the framer [or the framer’s functional equivalent] - or even merely to tarnish its meaning in some way that conceivably might pose a dilemma to a possibly deserving person who finds him- [or her-] self similarly discommodious.

[Lists of examples to illustrate such unacceptable violence invariably include the near-mythic “Double Negative” – with its attendant steep risks of embarrassment & being objectified in ridicule on lefty blogs & The Daily Show - so profound as to render imprisonment preferable.]

All of which makes out a forceful case – a casket even – that the interpretation of “intensity” most faithful to the intention of the framer of this definition is conditioned by all three words which appear at the commencement of the larger phrase of which it comprises an essential element – such that in order to merit condemnation as “torture” the employment of the “technique” under consideration must be “of” – that is: that the “technique” under consideration must be characterized by – or have among its characteristics - “some extended intensity”.

Prior to addressing the ultimate implication[s] of this determination - & although some might suggest this goes without saying [generally not a sound concession when it comes to exercises in statutory interpretation] –
it is necessary to consider the potential effect[s] which the words “duration” & “persistence” - appearing as they do in the same larger phrase - on the word/term “intensity” - both separately and cumulatively.

Adherence to the classic principles which apply to the interpretation of statutory language would seem to require that “duration” be accepted as intended to mean something distinct from the “intensity” which appears thereafter. In other words – or for example

[It’s within the DNA of statutory interpreters to strive for freedom from such conventions as the superficial distinction between those two commencing phrases.]

it must be considered that merely sustaining the time period over which the “technique” under consideration is applied to a subject [i.e. person] – even indefinitely – adds nothing to the issue of whether the application is characterized by “intensity” – indeed by any intensity at all leaving aside altogether that any intensity as might be present might also have to bear the additional burdens of ‘extension’

[again: not as to time duration but in some other aspect of the employment of the “technique” under consideration]

& of such ‘extension’ as is found be more than absolute zero

[the plain implication of the descriptive “some”].

A similar exercise is necessitated with respect to the descriptive “persistence”, bearing in mind that it appears at first blush that the prosecution is relieved of the burden of proving both “duration” and “persistence”

[though pains should be taken to avoid losing track of the need to satisfy the court that such “duration” or “persistence” that is proven present is also both “extended” and so beyond absolute zero. ]

I expect some might wish to raise a technical objection to my having drawn the “technique” into this otherwise impeccable defence of what I suppose will end up being known for the rest of recorded time as “Mukasey’s Muddle”

[“Muddle” doesn’t really serve to dignify the AG’s conundrum - but the only synonym my word processing program gave me that started with an “m” was “mystery” & I’d have to agree that there’s no real mystery as to what [who] is lying under the several somewat-less-than-overwhelming rounds he had with – well just about every Senator except Sessions.

I just gotta say this: My man OWNED Sessions!

As to the rest - I’m going to throw out for consideration that my guy heads an outfit with over 100,000 employees & with enough ongoing lawsuits to drive Warren Buffett from a career in business – whereas most days those Senators don’t even have to get out bed before noon & their biggest anxieties typically involve keeping track of the one day per month their constituents get to check on whether they’re off playing golf in the Bahamas.]

as opposed to the “suffering” which seemingly fits the passage on which my man stood his ground

[& incidentally the ground on which Prof Marty chose to challenge him].

Believe or not I thought about doing just that –

but then I saw Senator Kennedy put my boy down for the count with a blatant low blow – right here

[I’m lifting this from emptywheels live blog.]:

Teddy: Would waterboarding be torture if it were done to you?

MM: I would feel that it was.

Now my boy’s head cleared enough he was able to con the ref into thinking he’d recovered fray with that “equal intelligence – equal good faith” jive – but you could just see that even Kennedy – 4,000 pounds off his optimal weight & 10,000 40-ouncers past his prime – could tell he couldn’t drag his nuts out past his kidneys & let him up for some shadow boxing over voter registration - & my guy was STILL so out of it he tried to turn it into a tag match with Chertoff!

Here are my exact thoughts right from when Kennedy nailed him right in the goolies:

Dude – it’s me - hold on to the ground a sec – gotta catch your breath – gonna feel pain pretty soon okay? Let’s get our bearings.

So from where I was watching you just now conceded knowing enough about this waterboarding “technique” that –

Okay on the plus side it looks like you at least demonstrated sufficient empathy with the feelings of others that you can readily appreciate how it must feel to be tortured

& that’s shows you’re no psychopath & that’s gonna buy you room –

But the thing of it is - you in effect admitted that if the “technique” you now know enough about that if that were used on you there’s no doubt in your mind – none - that you would definitely “FEEL” exactly the same as you would feel if you were in fact being tortured.

Well fine that’s not exactly word-for-word what you said - but Dude – what you said word-for-word was CLEARER than that right?

You following me?

Cuz it sure looked like you understood exactly where Teddy was coming at you from - if I’m you I’d give up on the eye-rolling pronto - what’s done’s done no one’s gonna buy “mis-spoke myself”.

But you just gave me an idea here – we’re gonna go with this – you just lost the ability to give a straight answer right? Throw in a few non-responsive responses – make like your ability to form a cogent sentence took a coffee break without you. Teddy gets bored playing with a dead thing – I get Sessions to do his Senor Wencas bit - buy you enough time to pull the plug on your self-respect – Badda BING!

Sure it can sell - it’s not as if everyone doesn’t know all about the Cro Magnons you volunteered to go to work for - that alone gets you to half a Mother Theresa - just keep thinking Zaire – Ali – rope-a-dope baby! Only you don’t get off the ropes.

Go get’em champ!

That should suffice to justify my opting for a sporting re-write.

Now for the part where I wrap up all the above-developed pure logic and Socratic extrapolation with semantical curiosities mixed in & observations on the prudent application of the principles of statutory interpretation.

Oh wait – one more slight technical limitation: the passage Mukasey chose to defend from does not qualify as “statutory language” in any sense but instead is the product of juristic rationalization - to which the deferentially-biased principles appropriate for interpreting products of properly established legislation within the competence of the branch of government which the Constitution reserves to it have absolutely no application for a great many sound reasons - & at that on a passage which only satisfies a single ‘standard’ by which one might determine its authority: the Rush Limbaugh “Way Things Oughtta Be” Test.

So what have we learned?

1. Mukasey chose to assume a measured stance on a passage lifted from a much larger opinion from one judge who happened to be sitting on a panel of appeals judges charged with the responsibility of upholding ot over-turning the verdict of a lower court, which panel was not the Supreme Court of the United States, which passage was not endorsed as even the collective opinion of the panel, let alone what animated that panel’s disposition of the case in reference to which the passage appears, in the context of a far larger opinion, which larger part reflected, as it was designed to, all the nuance’d appreciations that judge then had for the particular facts of that case and how they engaged the law of the land.

2. Such was the power of that stance that it collapsed as readily as a poorly constructed house of cards made from the contents of a pack manufactured for the specific purpose of being taken as a complimentary feature of a fleabag dive hotel short-listed for demolition – on being put to the test of a single short question which, with all due respect for the gifts & accumulated wisdom of the person who asked, was framed with no greater sophistication than is available to the average 10 year old.

3. Regardless of whatever else Mukasey is, he is not:

[1] emotionally retarded,
[2] reflexively rash,
[3] incompetent to perform tasks essential to his job,
[4] impaired by ignorance or incuriosity in job function, or
[5] psychopathic.

4. While it would not be prudent to assume that all that might be known about them reasonably relevant to enabling the drawing of judgments to the same degree of confidence on all of those subjects is in fact known - or even publicly available – still - as to the individual who is the current President of the United States & the individual the former chose to serve as his Vice President - it is fair comment that those five conclusions cannot be drawn as to either to the same degree of confidence – or indeed at all - & it is likewise fair comment to observe that it is not possible to conclude with any degree of confidence that even one of those five conclusions can be drawn about one or the other of them.
 

... he was OVP Counsel ...

No question, Cheney people have every reason to high-five themselves here, in fact, I suspect that unusually cheerful disposition Cheney displayed later that day at the State of the Union Address was brought about by Mukasey performance that morning.

Congratulating himself on how cleverly he outfoxed Schumer and fellow senatorial gasbags (Cheney's likely term for them) on that judiciary committee. Must admit if true, that was indeed clever.

--

P.S. Something is telling me Specter had enough of it already, chances are - assuming he can summon some courage - he will go independent soon .
 

Did anyone here honestly believe that this or any other President would appoint an AG who did not support the President's own policy views? Justice is not a separate branch of government, it is part of the Executive. The AG serves at the pleasure of the President to execute the policy goals of the President.

Does anyone here seriously believe that the members of the Judiciary Committee of either party are doing anything other than accepting the President's views on what is permissible interrogation? Instead of holding this waste of a hearing, the Judiciary Committee could have offered a bill expressly defining waterboarding as torture. They did not do so because they do not want to get blamed for the next 9/11.

Rather, they engaged in this cowardly charade for one of two purposes. If they oppose waterboarding, the Senators were hoping that the AG would do the heavy lifting of banning waterboarding for them. If they secretly support waterboarding, they are engaging in this charade simply to mislead you opponents of the practice as to their true beliefs. In either case, it is the Judiciary Committee rather than Judge Mukasey who come off looking pathetic and dishonest in this exercise.
 

The AG serves at the pleasure of the President to execute the policy goals of the President.

I cover this briefly over at my blog in this post (see Update 3). Some might think that the job of any executive officer is to do whatever the preznit tells him to do, but in fact, for most people, the standard definition of the job of the AG is as the "top law enforcement official of the Unites States".

Once again, I'd invite anyone that wants to pursue this "Bart" persiflage to do so in the comments at my post. I'll try and do this in those cases where I can get a corresponding post up, and those that want to reply can do so there, and maybe keep the Balkinization pages a bit cleaner of the type of "discussion" that tends to devolve when "Bart" starts with his regurgitations.....

Cheers,
 

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