Sheridan: Con-Law

MUKASEY PASSES SENATE JUDICIARY COMMITTEE

Sen. Chuck Schumer, a Harvard Law grad and Democratic senator from N.Y., has voted (along with Sen. Diane Feinstein of California, another Democrat) to confirm Michael Mukasey as U.S. Attorney-General, despite his failure to condemn waterboarding as torture.  Instead he's made an oral promise to Schumer in a private conversation, says Schumer, that he will prosecute waterboarding as torture if Congress passes a law forbidding it. 

This is slightly idiotic because Congress cannot pass legislation without the president's signature and it doesn't seem likely that George W. is apt to want to allow members of the team he captains, including himself, to be prosecuted for the way it fights the war on terror, regardless that it shows the U.S. to be no better than the worst countries in the world which use tactics we'd thought last appeared in torture museums and the Spanish Inquisition, which Spain has disavowed, but we, apparently, have not.

I don't know why Feinstein has voted to support Mukasey.  In an interview, however, she said that the main reason was that he was not Alberto Gonzales.  This is faint praise, indeed.  On that theory, Charles Manson would make a fine candidate, considering his legal experience.  Feinstein also states that Mukasey does not owe his political and legal career to Bush.  No, only the new job of Attorney-General of the U.S., thank you.

Schumer says that regardless of Mukasey's stance on torture, he'll do wonders to clean up the Justice Department.  Right.  He's going to remove the GOP politics that have tainted it for years.   How is he going to do that in one year, pray tell.  Even Schumer, in his Op-Ed piece, explaining his vote, notes the filth left by Alberto Gonzales and the fella' he answered to, Karl Rove and, I don't doubt, VP Dick Cheney and his henchman, Addington, another strong supporter of the president's prerogative to allow all means necessary to  encourage enemies to talk, short of death and serious bodily injury, no matter how degrading or humiliating. 

These are exactly the things we teach our troops not to do and protest when, as in Sen. John McCain's experience, they are done to us.  McCain was a prisoner of the North Vietnamese during our war there, where he was brutally beaten and tortured in a prison camp ironically named the Hanoi Hilton.  To his everlasting credit and honor, he refused early release ahead of fellow POWs, when the Viet Cong learned that his father was a big shot, the head of our Western Pacific Command, which calls the shots for the Navy and thus the country, by and large, militarily.

WATERBOARDING, TORTURE, WAR CRIME, PRESIDENT, A-G

There, we have it.

The United States prosecutes people for torturing our service people who fall into enemy hands.

This includes the water-torture, also called water-boarding.

If U.S. people commit this crime, we prosecute them criminally.

What about committing and prosecuting crime does Michael Mukasey, former federal prosecutor and federal judge, now GWB's candidate for U.S. Attorney-General, the chief law enforcement officer and setter of the moral tone for U.S. justice here and abroad, civilian and military, fail to understand.

He is unwilling to say that waterboarding is a crime.

Wny?

Perhaps because he'd have to investigate the president who appointed him and he fears what he might find as he went from CIA operative to Defense Secretary (Rumsfeld) to Cheney to Bush.

Bush is appointing this man because he knows he'll be protected.

Mukasey is unwilling to remove the protection.  He seems more willing to protect a potential law-breaker than to vindicate the rule of law.

This is why his confirmation by the Senate should be rejected.

See the article by Evan Wallach, a former JAG officer and current judge and professor of law, below, in the Washington Post, 11/04/07, entitled "Waterboarding Used to be a Crime."  I guess he thinks that Judge Mukasey has cast doubt on that given his view that the president can write his own laws, even those that supersede those written by Congress prohibiting degrading treatment of prisoners.

Senators Chuck Schumer of New York, who proposed Mukasey, a fellow New Yorker, and Diane Feinstein of California, both democrats, have announced that they will support the nomination.  Diane's excuse is that Mukasey is not Gonzales.  No, he's worse, because until now he enjoyed some credibility.  What are these senators thinking, voting to confirm Mukasey?  That there's one law for us and another for President Bush?  Remember, it's not just President Bush as an individual that we're talking about, but his entire chain of command down to the soldier in the field who captures an enemy soldier, combatant, or supporter in or near the field of conflict, which may be a battlefield or, in the new war on terror, in a city, i.e. anywhere.

So, to say that the president has immunity because of his alleged constitutional power to override anti-crime laws passed by Congress (something we haven't heard of before) gives not only him a license to commit crimes because he thinks it find and dandy, but all who take under him.  That's a lot of lawbreakers to wrap in the Constitution and permit to break the law.  Congress represents the people, mind you, us, in order to make our laws.  The president gets to carry them out, faithfully, not break them or invent his own, or make exceptions for his convenience.

The leading case on presidential duty to conform to the law as set forth by the people he serves, meaning as established by statute enacted by Congress, remains the Youngstown Steel (1952) case where Pres. Harry S Truman found to his chagrin that he could not take-over a steel company that locked out its workers to prevent a strike, as a war measure to keep the tanks and guns flowing during the Korean conflict when we had men dying in the field. 

Those who weren't around then may recall this war from the TV program MASH, located there. 

Congress had already denied the president take-over power to deal with labor disputes when it passed the Taft-Hartley Act in 1947.  The president was held not to have the power independently to act in derogation of Congressional act. 

Justice Jackson, in Youngstown, explained that the president's power was at its maximum when acting in accord with Congressional statute, and at its least when in opposition, and at its mid-level where Congress has not spoken to the point, statutorily.

Pres. Bush, in his treatment of captives policy, assuming that the reports of extraordinary rendition, failure to bring captives to court, and mistreatment of prisoners is true, as in Abu Ghraib and Guantanamo, is acting against statute and treaties of the United States.

It's a terrible thing to have a rogue president.

Given the make-up of the Court, now, with two arch-conservatives (Roberts and Alito) added by Bush to the other two, Scalia and Thomas) it is likely that if the question came up as to whether the president had the power under the Constitution to override acts of Congress making certain conduct a crime, that there might be another 4:4 split, with Stevens, Souter, Ginsberg, and Breyer in opposition.

Anthony M. Kennedy, is likely to be the tip-weight, the decider as to the Decider GWB, as usual.  He's an avowed conservative that will pull him one way, but he has a humane streak that may tend to favor the rule of law in a case like this.

MUKASEY WORRIES ME...

Why?

Because he seems like an Alberto Gonzales with brains and a legal education.

I know, former A-G A.G. went to Harvard Law School, but he surely wasn't one of its better products, or if he was, he handed his independent judgment over to his boss before he was ever appointed.

Mukasey, on the other hand, served as a U.S. District Court judge in the Southern District of N.Y., which is a mark of some distinction.  The problem is that he believes the same nonsense as as Gonzales about the president supposedly having the power to disobey the law of Congress because, hey, the Constitution (that's the law, too, isn't it?) gives him powers equal to and better than Congress for him to use if he doesn't like the laws Congress makes, such as when it comes to protecting the country.

Here's the problem.  We don't disagree that the president has the power to use the military forces to protect the country.  This means he can defend and attack without notice if he deems that circumstances warrant, such as when a situation arises and Congress is not in session.  The day after Pearl Harbor, President Franklin Delano Roosevelt spoke to a joint session of the House and the Senate and announced that since December 7, 1941, the day before, a state of war has existed with the Empire of Japan.

No problem of presidential power existed.

President Lyndon Baines Johnson used the fraudulently obtained Gulf of Tonkin [Joint] Resolutions of Congress as his authority to build up troop levels in Vietnam until we called it quits before we were run out entirely in that unpopular civil war in which we decided to take sides for Cold War ideological reasons, to our regret.

On the basis of fraudulently represented stale and stretched "evidence," Pres. George W. Bush invaded Iraq, which hadn't threatened or attacked us.  He just didn't like Saddam, who had tried to have his old man murdered in revenge for the Persian Gulf war.  He needed killin,' as they like to say in Texas.  So we're still stuck there, but let us not digress, shall we?

No one is saying that the president shouldn't have the power to use the aircraft carrier groups and long-range rockets to protect the country in case of an attack, real or even pre-emptive.

The problem is that George W. wants to use other, illegal methods, such as eavesdropping on you and me without a warrant, arresting us and holding us without trial for as long as he likes or for the duration of the war against people who don't like us, whichever is longer, and to use torture on us and any bad guys (I know, to him there may be little difference) to make us talk, as though we know when the next World Trade Center attack will be.

All of these are against the law of the land, either statute law or treaty that we voluntarily entered.  You do these things and you are apt to find yourself an international war criminal as well as a domestic federal criminal.

Mukasey's argument doesn't allow for this.

Which is why George W. wants him confirmed, wouldn't you agree?

Do you think George W. wants an attorney-general who will investigate him?  As he probably should?

Bush may be crazy, but he isn't nuts.

For more on Mukasey's Bush-empowering views, see the article below by John Nichols, 11/04/07, from the Nation.

LAWS FOR KILLERS AND TORTURERS: MUKASEY

The object, in war, is to kill your enemies, so you win.  Boot camp is where we teach boys who've been taught not to fight, to fight and kill.  "Kill, kill, kill!" boots shout as they ram bayonets mounted on rifles into target dummies.  This is good.  It's what got us to this point.

In olden days, there were rules of war.  Before international treaties governing war and the conduct of battle, there was a gentleman's code because, after all, the leaders of the armies in the dynastic wars were the king and his noble earls, all gentlemen.  When captured, they didn't mistreat each other, under the code of chivalry.

Fast forward to World War I in the trenches of France at places called the Somme and Ypres where poison gas and dum-dum bullets were used.  Dum-dums were incised at the tip with an X to make them spread out on impact and tear out your guts on exit, insuring that your downfall would require four of your battle buddies to drag you off the field before you bled to death on the spot, which you usually did, while enduring maximum agony.

These two lethal techniques were, after the war, outlawed by the Geneva Conventions, along with torture of prisoners to extract information or to punish for being the hated enemy.

The United States signed the Geneva Accords during the 1920s when they were negotiated, about 1924, if recollection of what I've read serves.

Come 9-11 and the U.S. has put a premium on finding out what our attackers have in mind.  So we've moved isolation and torture front and center.  Previously, say in the Korean War, we'd simply turn prisoners over to our South Korean allies and let them go to town, and thank them for the information, which may even have been useful sometimes.  Of course there's the saying that you can catch more flies with honey than vinegar, so maybe you'd get more and better information by warming up to your prisoner, but, while candy is dandy but liquor is quicker, torture cuts to the chase without a lot of folderol.

It appears, thus, that we have laws regulating our killers as well as our torturers.  Killing in war has to be done on the battlefield, in battle, to be legal.  If an enemy soldier surrenders, you can no longer kill him, legally.  He's entitled to POW status until the end of the war.  Nor may you legally torture him to find out what his army plans to do next.  Naturally there is a great temptation to ignore these rules when you think you may lose the battle or the war, and your country.  Yet we drill our soldiers in the law of war and the rules of engagement.  We teach them that if they violate these laws, they can be prosecuted before a military tribunal and sentenced to a term of years in the military stockade or federal penitentiary.

We even teach our soldiers that they not only have the right, but the duty to disobey, obviously unlawful orders from superior officers, such as to shoot prisoners or civilians or torture prisoners.

An officer who issues such an illegal order could be prosecuted and found guilty of committing a war crime.

Our officers take their direction from lawful directives issued by their civilian superiors.  The president issues an order to the Secretary of Defense who passes it along to the Joint Chiefs of Staff which passes it along to the officers down the chain of command to the officers, non-commissioned officers, and the men and women now in the field.

If the president okays torturing prisoners and the soldiers obey, who is more to blame?  The private soldier who carries out the president's order, or the president?

See the New York Times article on this today, below:

Who should know better?  The Yale-educated president with the support of his legal advisers or the private soldier, a graduate of boot camp, on the front line of a war where people are shooting at him?

You can see that our president may have a concern about being prosecuted as a war criminal if he tolerated torture as a means of war.

Our president has nominated a retired, Republican, federal judge, Michael Mukasey, to replace the former Attorney-General, Alberto Gonzales, who resigned in disgrace for incompetence and worse.  He authorized torture, in effect, by refusing to see it for what it was, a war crime, because perpetrated by us and his boss, the president.

In his Senate confirmation hearings, Judge Mukasey has refused to state that he thinks waterboarding is torture, although personally, he finds it 'repugnant,' but not necessarily illegal.

Whoops!  What's going on here?

What's going on is that the president has appointed a guy to a position having the power to prosecute Pres. Bush and the nominee doesn't want to prosecute Bush, the CIA which does the torture, or the troops serving their country.

But if we have a rule of llaw, and treaties and statutes outlawing torture, don't we need to be able to call evildoers, as our president likes to call them, to justice, including the president?  Or is the president above the laws written by Congress?  Until now he has not been.  Presidents can be impeached for committing high crimes and misdemeanors.  Clinton was impeached for lying about an act of friendship, a blow-job voluntarily administered by an adult, loving intern..  How much worse, then for a president to authorize his men to commit torture on a now helpless prisoner?  Oh, but this was to save the country, so that makes it different, right?

That's the argument, but it is very unlikely that this country needs to be saved by resort to torturing a prisoner, any prisoner.  When we reach the prisoner who has the keys to our salvation, let me know and we'll deal with it.  Meanwhile, we do have these laws passed by Congress, endorsed by the country, and taught to our soldiers.

The problem is that they don't seem to be taught to our civilian leaders and the president, or if they are, they are taught with the caveat that the president may be free to ignore them based on the inherent powers of his office, whatever they are.  I seriously doubt that the president's powers exceed the limitations place on them by the Congress by statute and treaty, signed by him.

So Mukasey cannot go on record as saying that waterboarding, something we've done, is a crime, because then he'd wind up prosecuting the man who has nominated him to this high position of chief law enforcement officer, as the position of A-G is often called.  He might be willing to testify that roasting a prisoner over an open flame is a war crime, assuming we don't do that, but not waterboarding, which we do.

This is sad, to see a federal judge revealed to be a lawless protector of someone or some people who may have committed war crimes.

Since he doesn't appear really to believe in the rule of law, why place him at the top of the law enforcement heap?

Doesn't this make a mockery of the idea of justice?  That the head of the justice department can prosecute others for committing all sorts of crimes, but not those who commit war crimes in the name of you, me, and the country?  Isn't this like joining a lawless gang, a conspiracy of cut-throats, engaged in terrible crimes, while prosecuting others for doing far less?

Can't the president find a nominee for A-G who believes in the rule of law?

Of course not, for then he might have to turn his powerful guns on the president, and no president, especially Pres. Bush, would be so stupid as to do that, would he?

WELL IS IT OR ISN'T IT? MAKE UP YOUR MIND, MUKASEY!

    The Senate Judiciary Committee, which screens and approves nominees to federal judgeships and for attorney-general has seemed so happy that Pres. Bush has nominated someone who doesn't resemble the former A-G, Alberto Gonzales, who resigned in disgrace over lying, torture, and lawlessness, all embodied in him, that it seemed ready to give Michael Mukasey a pass simply for not being Gonzales.

Mukasey, a retired federal judge from N.Y. and a friend and supporter of former U.S. Attorney in NY, Rudy Giuliani, is not having problems with some of his answers.

Waterboarding is a form of torture in which the shackled prisoner has a cloth placed over his face while his tormentors pour water from a pail or hose over the cloth.  Try breathing through that.  You can't.  Panic is induced.  This is where your mind and body realize it is going to drown to death, now.  Panic is going out of control.  The water stops, momentarily, as you try to suck some air through the soaked cloth and rid your airways of water that it preventing your breathing.  Not ready to answer questions yet?  Here, try some more water.  Sputter, retch, urinate, defecate on yourself.  Ready yet?  We have more water.

Mukasey says he's against torture.

Well, goll-ee!  Stalin, Hitler, and Tojo would probably deny torture if placed on camera, too, but their regimes were well known for torturing prisoners.  In the United States in which I grew up, we didn't do that, or so we believed, quite wrongly, no doubt.  However we do have laws against torture, defined as degrading practices, and have signed the Geneva Conventions, since 1924.  Our official policy is that we do not torture.  We think this makes us better than those who do.  We have a few tough guys who see it differently, including George W. Bush.  He's all for it, so long as it's us doing it to bad guys and not them doing it to us.

Well, is waterboarding torture, a senator asked Mukasey during his hearing yesterday?  He refused to answer.  Thus it continues and the lawyers can argue about it in court next year.  His answer does not help the prisoner shackled to the chair or board who cannot breathe.  No directive goes from the Department of Justice to the Department of Defense stating that waterboarding is torture and if we catch you doing it we will throw you in jail while your lawyers argue over you for the next few years.

Mukasey refuses to protect prisoners from torture.  A retired federal judge.  About to become the chief law enforcement officer, as it is jokingly called, of the land of the free, the home of the brave, and a den of torturers.  Under God, of course.  Thank God that God, who must approve the torture of his creatures, approves of torture.  Can you see the Dalai Lama, who yesterday received the Congressional Gold Medal with the president in attendance, over the strong objection of China, approving of torture?  Of waterboarding?

I cannot.

We have the moral stature of Hitler and Stalin while a Tibetan monk is used by us to show China right from wrong.

I don't geddit.

Making matters worse, Sen. Patrick Leahy, chair of the SJC, asked whether Mukasey thought that the president was empowered under the Constitution to ignore statutes prohibiting torture and other bad things.

Mukasey thinks that the president has the power to override laws passed by Congress restraining him and his Executive Branch subordinates if he thinks it necessary, say to defend the country.

What Mukasey misses is that these laws passed by Congress, as representatives of the people who rule themselves in our republic and democracy, are our primary defense, not the president.  It is our laws which provide us our dignity and moral statute as a people.  They protect us from being a mere armed band of bandits who anyone would be justified in eliminating, the way we try to eliminate Al Qaeda.  Our laws are our legitimacy.  Legitimacy is the idea that underlies all Constitutional Law.  Al Qaeda is illegitimate anywhere in the civilized world.  We, without the torture, are legitimate.

Torture delegitimizes us.  If we adopt torture as a so-called legitimate exercise of power, we deserve to get knocked off our undeserved perch as leader of the free world, in favor of someone more legitimate.

We had better clean up our act, pronto.

Mukasey is waffling.  He is not about to clean up George Bush's act.

Mukasey should not get a pass.

Mukasey should not be confirmed by the SJC or the full Senate.

The whole world must be watching to see whether we practice what we preach.

If I were a an American soldier, entering battle and risking capture, I would not feel supported by my nation if I knew that my captor could torture me and we couldn't protest because we do the same thing.

You want to support the troops as well as the country?  Oppose torture and those who waffle on whether the likes of waterboarding is torture.

An LA Times report on yesterday's questioning of Mukasey appears below.

MUKASEY: WOLF IN SHEEP'S CLOTHING?

He sounds a lot better than Alberto Gonzalez, who he is replacing as U.S. Attorney-General, on the record, but what he says off is something to be concerned about.

You'll have to read all the way down the Slate/Bazelon column, below, to find out why the pause for concern, as there may be a cherry-bomb in this wedding cake.

***

Next day the NYT editorialized and showed where Mukasey was lacking in detail.  I've posted this after the Slate column, below: