Sheridan: Con-Law

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.

HAMDAN

The United States is only as good as the laws that it follows.  The former USSR  had a written constitution with all sorts of individual rights promised but not kept.  The result was that it was still the evil empire as far as we, and Ronald Reagan, were concerned. 

This business of actually following the law you profess to believe in, apart from hypocritically ignoring it to suit convenience, is called "the rule of law."  They have a day celebrating it, but it's not as big as Thanksgiving and we don't go on shopping sprees for the rule of law day.  You could give each other law-books, I guess, if there were.  Maybe this is why it hasn't taken off.

The Bush Administration seems to regard law as a little nuisance that sometimes gets in the way of the nation's march to world power, with us in front, the Brits on our side, the Germans in the rear, and the French following the rear-guard, singing rousing army marching songs from La Revolution like La Marseillaise and Ca Ira, carrying the pots, pans, and blankets.  Italy is back there somewhere in case we need to charge to the rear.  Forget Russia and Japan. 

Alexander the Great Bush isn't.

The U.S. Supreme Court has a greater regard for the rule of law.  Congress is asleep at the switch.

Pitted against each other are the rule of law and the rule of Bush.

Can you think of good reasons why each side should win?  Unless you do that, you're not really thinking. 

Conlaw is easy when your mind is already made up, too easy, when in reality it can be quite difficult to make the necessary hard choices.

You can read all about how the Supreme Court struck back in the article by David Cole from the August 10, 2006 issue of the New York Review of Books, below:

PRES. BUSH'S SLIPPERY SLOPE TO TORTURE

We make rules to rein in men's passions and call it law.  Rules against murder, rape, theft, a whole penal code of rules.  We also make rules of war, for war starts in passion and generates more.  So we need rules to prevent slipping into an even greater swamp of barbarity than is war itself.

One of those rules is that upon capturing an enemy prisoner, you must do to him as you would want done to yourself.  He's now helpless and a non-combatant, as the fight, for him, is over.  He's no longer a threat to you.  He's now a disarmed civilian, held in a POW camp behind the lines until either repatriated unconditionally or exchanged for one of our own fallen into enemy hands, or the war ends and he's released.

Torturing prisoners on any pretext is forbidden.  After the atrocities of World War I (1914-1918), the Geneva Conventions prescribed the new rules that we made up to prevent further barbarity, to the extent we could.

It wasn't enough.  We have a president who thinks that the power of his office permits him to rise above the rules we've made over a long time regarding how to treat people.  Treating people kindly, meaning humanely, meaning with respect for their being a human being, is nothing compared to his duty to protect the country, as he sees it.  Or so it appears.

In today's New York Times, Anthony Lagouranis, an American soldier who interrogated Iraqi prisoners at Abu Ghraib prison using dogs to intimidate, explains what he did, and why it is so important not to muddy clear rules when passions run high, such as when interrogating prisoners whom you are told have information regarding the next big attack, and it is your job to get it out of them.