On Mukasey, Feinstein doesn't get it; Jack Balkin explains

[ProSense]

Sen. Feinstein: Judge Mukasey has my vote

The attorney general nominee's answers on torture are clear, and he will rise to the challenges of the job.

By Dianne Feinstein
November 3, 2007

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Judge Mukasey is not Alberto R. Gonzales. In our confirmation hearings (and subsequently, in writing), Judge Mukasey's answers to hundreds of questions were crisp and to the point, and reflected an independent mind. That's why I intend to vote to confirm him to be our next attorney general. I truly believe he will be a strong advocate for the American people.

The Justice Department is in desperate need of effective leadership. It is leaderless, and 10 of its top positions are vacant. Morale among U.S. attorneys needs to be restored, priorities reassessed and a new dynamic of independence from the White House established.

I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.

Serious questions have been raised about Judge Mukasey's views on torture and on the separation of powers.

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The bottom line is this: I hope that Judge Mukasey will fairly and evenhandedly represent the American people and direct the Justice Department wherever the facts and the law lead, not where the White House dictates.

Our nation needs a strong and independent attorney general, and I believe that Judge Mukasey will rise to the challenge.

(Emphasis added, see Scott Horton's comment below)

Saturday, November 03, 2007

When Diane Can't Read

JB

Explaining why Judge Mukasey has her vote, Senator Feinstein opines:

As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.

Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government.

Just one little problem with this logic. The prohibition on torture already applies to all parts of the government. Apparently Senator Feinstein has not read the Detainee Treatment Act, which she voted for.

SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

And what of 18 USC section 2340A, which Congress enacted in 1994 to enforce the Convention Against Torture?

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

What does it say about our elected representatives that Senators simultaneously believe that waterboarding is torture but also believe that CIA interrogations using waterboarding are currently legal? Does Senator Feinstein really believe that torture is currently legal in America? Or does she just not care?

Also note John Dean and Scott Horton (who has worked with Mukasey):

I have very strong conflicting views about the vote which is coming in the Judiciary Committee. I believe that Mukasey, as an individual, is exceptionally well qualified to serve as attorney general. I would approve the Mukasey who says he "personally" finds waterboarding abhorrent. But I am troubled by the "official" Mukasey who is being trotted out as something different. And I believe that the nation cannot, at this stage, accept the appointment of an attorney general who refuses to come clean on the torture issue. In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite.

If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.

(Emphasis added)

More Balkin.