Precedents

The Washington Post hails the Schumer/Feinstein decision to take a principled stand in favor of the proposition that if one Attorney-General breaks the law all his successors should do it too:

The halls of Congress are too often filled with cowardice and groupthink. So it is reassuring when not one but two lawmakers show the moral fortitude to defy party politics to take a stand on principle.

Democratic Sens. Charles E. Schumer (N.Y.) and Dianne Feinstein (Calif.) showed such courage Friday when they announced their support for attorney-general nominee Michael B. Mukasey. Both are members of the Judiciary Committee, which is scheduled to vote Tuesday on Mr. Mukasey's nomination. It is likely that their support salvaged Mr. Mukasey's nomination, imperiled because he would not state outright that the interrogation method known as waterboarding, or simulated drowning, is illegal. While we, like Mr. Schumer, Ms. Feinstein and others, would have wished for such an answer, supplying it would have put Mr. Mukasey in conflict with Justice Department memos that likely allow the technique -- memos that those who may have carried out or authorized waterboarding relied on for legal protection. Both Mr. Schumer and Ms. Feinstein cited Mr. Mukasey's intellect, his stellar qualifications and his reputation for being straightforward and independent as reasons to support his nomination.

The good news, I guess, is that this is consistent with the Post's steadfast advocacy of retroactive legal immunity for lawbreaking telecommunications firms. Basically, their point of view seems to be that since the Bush administration repealed the rule of law in such a sweeping manner during the years following 9/11 that any effort to restore legality and accountability would necessary involve putting some important people and corporations in legal difficulties, so we all need to just accept that we live in some kind of crazy plebiscitary dictatorship and hope that future elected officials behave themselves. After all, just because Mukasey won't say he'll follow laws against torture doesn't necessarily mean that he won't. Why not make hope the plan?

Comments

Looks like Musharraf was a bad student. In seven years of coaching by the Bushistas, he should have at least learned how to grab power from the legislative and judicial branches without firing a single shot ot putting any political opponent in jail.

Posted by gregor | November 4, 2007 11:04 AM

While we, like Mr. Schumer, Ms. Feinstein and others, would have wished for such an answer, supplying it would have put Mr. Mukasey in conflict with Justice Department memos that likely allow the technique -- memos that those who may have carried out or authorized waterboarding relied on for legal protection.

These memos were, and--I guess--are, official statements of law. People who carried out water torture in good faith reliance on an official statement of law, if they were ever prosecuted, would have a persuasive mistake of law defense.

AG-nominee Mukasey's testimony to a Senate committee while he is still a private citizen, on the other hand, is not an official statement of law or anything like it. Any statements he might make at a confirmation hearing would have no legal force, and could not provide more or less criminal liability for anyone.

Is it beyond the competence of the Post editorial page to call a criminal lawyer so that they can have some idea what the hell they're talking about?

Posted by southpaw | November 4, 2007 11:15 AM

Can we kill the "simulated drowning" phraseology? If water is actually entering the lungs, as seems to be the case in some instances, then waterboarding should be described as something like "drowning up to the point of near-fatal pain."

"Simulated drowning" sounds too much like some wacky, ultra-modern, virtual-reality technique. It soft-pedals what's really going on.

Posted by Jackmormon | November 4, 2007 11:17 AM

Can we just call it water torture? Is that unfair?

Posted by southpaw | November 4, 2007 11:19 AM

"Water torture" has the disadvantage of not being a euphemism, thus is an unacceptable term for discourse in places like The Washington Post editorial page.

Posted by Bat of Moon | November 4, 2007 11:37 AM

I'd have a lot more respect for their "principled stand" if they had actually taken a position when it mattered. If Congress doesn't like the policy, they have options, from passing legislation forbidding the practice, to selectively defunding things to get the Administration's attention.

Instead, they seem far more interested in having something to speechify about. I'm not impressed.

Posted by James Robertson | November 4, 2007 11:47 AM

matthew, you worked for chuck schumer: could you please explain why it was so hard for him to say "you know, i thought mukasey was a good choice, but now i've learned that he isn't?"

feinstein, of course, is a lost cause by definition, but schumer should have been able to suck it up.

as for james robertson, i can't begin to figure out what he's trying to say here, although i think it is "if a political minority can't win the votes, it should stfu." brilliant.

Posted by howard | November 4, 2007 11:55 AM

After all, just because Mukasey won't say he'll follow laws against torture doesn't necessarily mean that he won't.

What he, nor any nominee for AG, won't do, is commit to a scenario which ensures the prosecution of individuals working on orders from the Bush Administration.

Regardless of the determination that this is good or bad (and it's clearly a sorry state), it would be nice if the Post editorial page would consider a "stand on principle" to be putting pressure on the Bush administration rather than fast-tracking its immunity.

Posted by SoCalJustice | November 4, 2007 11:58 AM

What he, nor any nominee for AG, won't do, is commit to a scenario which ensures the prosecution of individuals working on orders from the Bush Administration.

Not to seem too cynical, but I doubt that anyone high up in the Bush administration cares what happens to the low level people who actually performed the torture. What worries them is that they themselves might be indicted for instituting torture as a policy.

Posted by k | November 4, 2007 12:11 PM

The halls of Congress are too often filled with cowardice and groupthink. So it is reassuring when not one but two lawmakers show the moral fortitude to defy party politics to take a stand on principle.

Indeed. And thank goodness the Republicans--not one of whom will vote against Mr. Mukasey--also show genuine fortitude in resisting groupthink.

Posted by ed | November 4, 2007 12:49 PM

That editorial is an absolute disgrace. It seems like the only kind of "courage" they recognize is bucking one's own party -- the elevation of Broderism above all else. They refuse to recognize that sometimes one side is right and the other, wrong; abandoned any kind of discretionary moral judgment, and replaced it with a reflexive worship of bipartisanship. If anything shows the decadence of the Washington elite, it is this editorial.

Posted by Matt Stevens | November 4, 2007 12:53 PM

Yeah, I read this this morning over coffee and while it didn't suprise me one bit, it still pissed me off. It does go on to say that Congress should ban waterboarding--which sounds good (heck give it a try), but last I checked this stuff has been illegal for a long damn time. So, somehow, the Democrats end up being the bad guys here even though it is this administration that is doing the torturing. The Post has lost all perspective--worshipping the presidency did them in. It goes beyond Broderism to Hiattism.

Posted by d | November 4, 2007 12:57 PM

"lawmakers show the moral fortitude to defy party politics to take a stand on principle"

And, since that stand is, "The Bush Administration should be allowed to torture people at will and call it both legal and just," and "party politics" involves disputing the wisdom of that stand... the Post comes down in favor of the Bush Administration and torture.

Fuck Fred Hiatt.

Posted by Chris | November 4, 2007 1:14 PM

Thanks Matt, Matt Stevens and Chris. This may be the clearest example of the grotesque village sense of 'courage' yet ('courage' = 'abject, boot-licking sycophancy'). Equally disgusting is the not so thinly veiled charge that those who want the nominee to take a clear stand against torture are moved by cowardice and groupthink. (The logic of cretino-Broderism, if carried through consistently, would require us to praise the courage of Dems who break with the party on this issue and the Republicans, if any, who break with theirs, while condemning everyone else in both parties as cowards, not that I expect we'll hear Hiatt condemning the latest lock-step endorsement of Bush's criminal policies by his party any time soon.)

About the euphemistic talk of waterboarding as an 'interrogation technique'. If it wasn't absolutely awful for the person undergoing it, there would be no bloody point to it.

Posted by J | November 4, 2007 1:54 PM

Thanks, J -- I'm also amazed how the Post/Hiatt insists that loyalty to Bush is the supreme virtue, and anyone who doesn't subscribe to that mentality is motivated by "cowardice and groupthink."

Screw waterboarding; the *projection* here is so thick you could choke on it...

And there's no chance in hell Hiatt would condemn lock-step complicity by the GOP in Bush's criminal politics, unconstitutional abuses of power, and war crimes, because not only IOKIYAR, but Republicans are always right, and Democrats are always wrong, in Fred Hiatt's world.

Pravda on the Potomac, indeed...

Posted by Chris | November 4, 2007 2:41 PM

Even Shumer isn't trying to defend his vote as one of principle. His defense seems to be entirely pragmatic. If Mukasey isn't approved the alternatives from this administration will be worse. That may be a defensible position, but it is hardly one to be applauded as more principled than the view that people who won't actually defend all of the law shouldn't be attorney general.

Posted by Lon | November 4, 2007 3:35 PM

I bet Shumer agreed to Mukasey before Gonzalez resigned. i.e. he made a deal for Gonzalez's resignation. What is Feinstein's excuse? Between this and Soutwick it is very bizarre for a progressive like Feinstein to take these positions--what deal did she cut? Hope it matters more than the rule of law.

Posted by JC | November 4, 2007 3:39 PM

"a progressive like Feinstein" -JC

Hahahahahahahaha...

Posted by Chris | November 4, 2007 3:58 PM

Is it beyond the competence of the Post editorial page to . . .

You know, it pretty much doesn't affect the answer one whit how you finish that question.

Posted by Brautigan | November 4, 2007 4:08 PM

"[Schumer's] defense seems to be entirely pragmatic. If Mukasey isn't approved the alternatives from this administration will be worse." -Lon

Boy, *there's* an argument that nobody ever heard between January 1995 and January 2001 about a Clinton nominee or policy.

You know *why* nobody ever heard an argument like that?

Two possible reasons, one or both of which may be true:

1. Republicans don't fucking suck ass at negotiating. When your party is known for such gems of strategy such as, "We have to send the president a bill he can sign," you. fucking. suck. ass. at. negotiating. period.

2. Bill Clinton didn't think to blackmail his opponents with the death and destruction of thousands of random American civilians. Like Bush did by threatening to let terrorist attacks go through and promising to blame the inaction of his opponents for the ensuing destruction (in August with the FISA revisions). Strange, isn't it, that Bush threatens Democrats with violence for his own political gain, and they acquiesce. I think there's a word for that. I think it's called "terrorism." I wonder if they understand that. Or rather, perhaps, they understand it all too well.

(and if Schumer thinks "the alternatives from this Administration" would be worse, then let's ask him to explain what they are. What are we talking about here, martial law? Confirming that the Constitution no longer applies? Cheney shooting Harry Reid in the face? Joe Lieberman following him around and whining about civility until Schumer goes insane?)

Posted by Chris | November 4, 2007 4:10 PM

After all, just because Mukasey won't say he'll follow laws against torture doesn't necessarily mean that he won't.

What's not to like about faith-based justice?

Posted by urbino | November 4, 2007 5:09 PM

It's like I always say: primates don't like freedom.

They like freedom for themselves - not for anybody else.

And that goes for "justice", too.

In fact, it goes for just about everything having to do with controlling primates.

"Morality", "ethics", you name it - it's for others, not for the one espousing it.

As William Burroughs used to say, the mark of a shit is he has to be Right. And defining what is "right" and "wrong" is the key to always being on the "Right" side of things. As Robert Ringer said, everybody always draws the line between "Right" and "Wrong" somehow that they wind up on the "Right" side.

So for the Post, it's important that nobody but them - and the PTB that they suck up to - is allowed to say what is legal or illegal.

Which is also why Bush threatened to invade the Netherlands if a US citizen is ever charged with a war crime there while at the same time holding Padilla for years without charges and "rendering" kidnapped citizens of other countries to still other countries for torture.

And the only objectors to this policy are those who want to set the limits themselves.

Posted by Richard Steven Hack | November 4, 2007 5:26 PM

My biggest objection to this...

[since I've learned to simply ASSUME that prominent Democrats support torture....]

is that Schumer and Feinstein don't seem to have gotten anything, ANYTHING, in return for their signal loyalty to the Bush administration. The political ineptitude on display here is frightening.

Posted by Marshall | November 4, 2007 6:35 PM

This post makes me think of the best blog post ever contest (really no flattery). The first two lines are devastating. Reading them, I thought "this must be an overstatement". Reading the quoted text I decided it wasn't. Two lines correctly summed up the paragraph. Among other things, some trees would be saved if the Post editorial board just outsourced their insane apologies for lawlessness to you (you would even have to sign the editorials).

However, there is one too many "that" in the post and "their point of view is" is weak phrasing. how about "they believe". I thought it was a rule to always check if a sentence can be improved whenever one uses the verb "to be". hmmm what can I write for "was" ah I see I am using it to evade responsibility for the rule. OK how about an order : Whenever you use the word "to be" check whether you can rephrase the sentence to make it mor vigorous without writing something that you don't believe. I think on the hole that this is more important than not using homonyms. aaaaah I wrote is. Never mind.

Posted by Robert Waldmann | November 4, 2007 7:32 PM

d - Yeah, I read this this morning over coffee and while it didn't suprise me one bit, it still pissed me off. It does go on to say that Congress should ban waterboarding--which sounds good (heck give it a try), but last I checked this stuff has been illegal for a long damn time. So, somehow, the Democrats end up being the bad guys here even though it is this administration that is doing the torturing.

No. this is the Administration and the Democratic Congress doing the torturing. What Teddy and Leahy's game was - was trying to use a nominees hearing to change the interrogation policy when Congress was too gutless to do so by law.
The Democrats "gutlessness" is in fact a shred of common sense that those with a long-term view see. They know that the interrogation of Khalid Sheihk Mohammed saved thousands of lives on the West Coast and at Heathrow. Just as the Filipino's beating the hell out of Ramsi Yousef derailed the Boijinko plot on a dozen aircraft bombings over the Pacific. If they blocked all interrogation of dedicated fanatics and another 9/11 happened that was traced back to their love of Terrorist's Civil Liberties - they know that an unforgiving American public would turn on Lefty Democrats on a dime, and they would be shattered as failing to honor the most basic purpose of the Constitution and the Federal Government - safeguarding the Security and Lives of it's Citizens.

Matt Yglesias - The good news, I guess, is that this is consistent with the Post's steadfast advocacy of retroactive legal immunity for lawbreaking telecommunications firms.

The problem is the telecomm's example is identical to the Flying Schools that the 9/11 Commission, the Administration, and Democrats preaching endlessly about "failures" of 9/11 intelligence - said should have been contacted, should have cooperated fully with the US Government in examining Arab pilot's confidential records to see if warrants and arrests needed to be undertaken on the Islamic pilots.....
The telecomms made the call to cooperate fully with the Feds in good faith - after the 9/11 Hearings called for all private companies to assist the American Public in the War on Terror.

Good Faith.

And Senator Chris Dodd's crusade for "accountability" by way of multibillion lawsuits on behalf of overseas Muslims and who they called in the USA is undercut by news he received 50,000 in donations for his lame Presidential campaign from trial lawyers trying to get richer off telecomms that answered the call to assist in the fight against radical Islam. Dodd has always been a whore for trial lawyers, so no surprise.

Not a surprise from the enemy sympathizers that wish to gut us of our SIGINT tools on the war on terror and have us operate in the dark so we have no choice but be more sympathetic to radical Islam's goals. Intimidate those companies operating in good faith with the government. Same forces are now out trying to work up lawsuits against banks for help tracking the Saudi financiers of terrorism and their money trails - as breaches of scared terrorist rights to privacy of their financial transactions and private communications by wire of money and info on the disposition of the money in Iraq, Pakistan, Gaza....

Posted by Chris Ford | November 4, 2007 9:01 PM

Now I understand why the Left was so adamant about opposing Ted Olson. The intent all along was to ambush the nominee on waterboarding. That tack would have been a PR disaster on a nominee whose wife was killed by the terrorists on 9/11.

Posted by Fred | November 4, 2007 9:09 PM

"...interrogation policy that the Congress is to gutless to change by law".

It is a mark of "moral fortitude" to propagate this brazen lie.

Basically, not with moral fortitude, and by resisting groupthink we have establish that nobody above the level of Army corporal or county sherrif can be guilty of torture. Ah, also except furiners.

If Americans are captured by another government and tortured would we accept explanation "but we read in in LA Times and Washington Post that Geneva Convention do not restrict the techniques and protocols used by inteligence services, only by the military"? Or "we let Xsians do it, and Xsians operating in our coutry of Zeea are not bound by Xsian law, as it is not Xsia, nor by Zeean law, because they are not Zeean. Haha, got you there!" That would be moral fortitude!!

Posted by piotr | November 5, 2007 7:33 AM