Dems Give Mukasey a Waterboarding Primer

[ProSense]

Dems Give Mukasey a Waterboarding Primer

By Spencer Ackerman - October 23, 2007, 3:19PM

In response to Michael Mukasey's professed ignorance as to what waterboarding is, all eight Democrats on the Senate Judiciary Committee have sent Mukasey a detailed primer on the centuries-old torture technique. It includes some surprising historical details: did you know, for instance, that during the occupation of Japan, the U.S. prosecuted Japanese soldiers who waterboarded U.S. POWs?

You can read the letter here. But we thought we should do our part to educate Mukasey as well. So here's a waterboarding reenactment, courtesy of Keith Olbermann:

<...>

The Senators write, "Please respond to the following question: Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations?" During the hearing, Mukasey would only reply: "If it amounts to torture, then it is not Constitutional."

It should read "all ten Democrats" on the Judiciary.

[cali]

1. Good on them.

And the letter is very good indeed.

[soothsayer]

2. Did you know his kid works for Giuliani?

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=2112392

[EST]

5. My understanding was that he also worked for Toothy the Ghool,

until he was notified he was being nominated. I think that was the basis of some of the questions, last week.

[soothsayer]

12. You mean Michael M. himself? Sorry, I missed that!

[Uncle Joe]

3. Kicked and recommended.

Thanks for the thread, ProSense.

[Traveling_Home]

4. I hadn't known about the use by Japanese ..... Here are specifics

http://socrates.berkeley.edu/~warcrime/Japan/Yokohama/Reviews/Yokohama_Review_Asano.htm

Defendant: Asano, Yukio

Docket Date: 53/ May 1 - 28, 1947, Yokohama, Japan

Charge: Violation of the Laws and Customs of War: 1. Did willfully and unlawfully mistreat and torture PWs. 2. Did unlawfully take and convert to his own use Red Cross packages and supplies intended for PWs.

Specifications:beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward

Verdict: 15 years CHL

Reviewing Authority Recommendations:

Reviewing Authority:

Prosecution Arguments:

Defense Arguments:

Judge Advocate's Recommendations:

[hatrack]

6. Not to worry - I'm SURE he'll be confirmed!

Then we can all breathe easy and resume our normally scheduled shopping.

[cali]

7. here's a question for you

Mukasey is unacceptable. Keisler is even more unacceptable (also a high ranking BFEE member, which Mukasey is not). Confirm Mukasey and Keisler goes. Reject him and Keisler stays. You are a dem Senator. What would you do?

[Ian David]

10. Send a list of acceptable nominees to the pResident and tell him to pick one. n/t

[cali]

16. Keisler's still Acting AG

What makes you think bushco will go along with your plan?

[Ian David]

17. We have a mandate. He doesn't. n/t

[Richard Steele]

11. What part of "unacceptable" do you not understand?

Nm

[cali]

15. What part of Keisler stays if Mukasey is rejected is

so difficult for you to grasp???

[Richard Steele]

21. We all grasp that; we just disagree with your silly "the game is tied, so let's forfeit" idea.

nm

[cali]

23. ooh, the collective "we"

I'm hardly impressed.

[Richard Steele]

31. Wow, Cali's "not impressed" with something most DUers agree upon. Someone alert the media!

I'd do it, but I'm about to SWOON from the shock of it all!

[Disturbed]

13. Mukasey should have been asked if he would volunteer

to be water boarded in Congress.

I would not vote yes for this tool. He is no better than Gonzo. The DOJ is a mess, no matter if he would be confirmed or not. Of course, this is all moot because the Dems will confirm him.

[hatrack]

14. In what way is Keisler worse than Mukasey might be?

Sheldon Whitehouse: "Is waterboarding constitutional?"

Mukasey: "If waterboarding is torture, torture is not constitutional,"

Whitehouse: "I mean, either it is, or it isn't."

Mukasey: "If it amounts to torture, it is not constitutional."

Whitehouse: "If it's torture? That's a massive hedge. I mean, it either is or it isn't."

Mukasey: "If it amounts to torture, it is not constitutional."

Whitehouse: "I'm very disappointed in that answer. I think it is purely semantic."

So an Attorney General who doesn't know if waterboarding even is torture?

Better yet, let's tune in for his interpretation of how torture is or isn't illegal, depending on whether the president says so:

Mukasey: "The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."

So, he "doesn't know" if waterboarding is torture, and states that if the president says torture is A-OK, he is in fact "putting somebody within the law", even if torturing someone is "contrary to statute"?

Please explain to me how this guy is any better than the AAG we now have.

[Ian David]

19. Congress has an obligation to Advise and Consent.

They are not allowed to consent to someone who is not fit for the job, just because the guy currently doing it is worse.

[cali]

22. That's actually not a bad argument but

it doesn't take reality into account. It's a catch-22.

[Ian David]

24. Doesn't matter. They have a CONSTITUTIONAL OBLIGATION to do their job...

even if the result of doing what is REQUIRED of them isn't good.

We cannot allow all the democrats to Biden-out of their CONSTITUTIONAL OBLIGATION.

What they CAN do is vote to Impeach Keisler in The House, while The Senate is voting against nominating Mukasey.

Meanwhile, Nancy Pelosi can pat Bush on his hand and say, "There, there, little fellow. Look at this list. Pick someone from this list, and it will be okay. Georgie want a binkie?"

[cali]

25. Sorry. You're really not living in reality

if you believe what you wrote.

[Ian David]

27. I didn't say it would WORK. But dammit, they need to fight. n/t

[cali]

20. Here:

KEISLER: The bad, the ugly, and the worse.

8 things you need to know about Peter Keisler:


Keisler was a co-founder of the Federalist Society;

The Federalist Society was a check box in Goodling's evaluation of U. S. Attorneys;

Keisler oversaw the Administration's fight against habeas corpus for Guantanamo;

Keisler allegedly interfered with the Tobacco conspiracy trial;

Keisler received a recess appointment at age 24;

Keisler testified against extending whistle blower protections using arguments contradicting existing federal statutes;

Keisler defended secrecy for all Warrantless Surveillance info, arguing that even confirmation or denial of its existence threatens national security;

Keisler defended the Interior Department in Cobell v. Norton - a tour de force of legal maneuvering and alleged DOJ obstruction of justice.

http://scoop.epluribusmedia.org/story/2007/9/19/204313

(also Keisler was a key member of bushco's legal team in 2000)

D.C. Circuit Nominee Keisler Accused of Undermining Government Tobacco Case


UPDATE: D.C. Circuit Nominee Keisler Accused of Undermining Government Tobacco Case

03/22/2007 - Disturbing allegations have come to light that Peter Keisler—a co-founder of the Federalist Society and currently a nominee to the D.C. Circuit Court of Appeals—was involved in applying inappropriate political influence in the government's case against the tobacco industry.

Veteran Justice Department lawyer Sharon Eubanks has claimed that Assistant Attorney General Keisler and his then-deputy were two of three Bush administration political appointees at the Justice Department who worked to undermine the government's case.

The accusation is consistent with the politicization of the Justice Department under President Bush—most recently the firing of U.S. Attorneys for political reasons. The Senate Judiciary Committee must fully examine Keisler's role in the tobacco case.

In addition, the committee must fully examine Keisler's record as Associate Counsel and Assistant Counsel in the Reagan White House, where he reportedly worked on AIDS policy, the Bork Supreme Court nomination, and other controversial matters. That is currently not possible because nearly all the documents pertaining to his work there remain locked away in the Reagan Presidential Library, apparently at the behest of the Bush administration.

<snip>

http://www.pfaw.org/pfaw/general/default.aspx?oid=23422

but the Senate has not acted to confirm the nomination.

The professional history of Justice Department political appointee Peter Keisler includes a prior nomination to the Fourth Circuit, which was withdrawn after being blocked by both Senators from Maryland. Senator Patrick Leahy (D-VT) and others have complained that the Judiciary Committee has received insufficient background materials on his nomination, currently omitting documentation of Keisler's Reagan-era work on arms sales, aid to Nicaraguan revolutionaries, and signing statements. " Keisler was described by Legal Times as "a well-connected Republican foot soldier during the 1980s and an acolyte of ultraconservative ex-D.C. Circuit Judge Robert Bork." Since joining the Justice Department more recently, he approved the government's unilateral concession of $120 billion in penalties previously sought from the tobacco industry, for which he has been publicly criticized by career lawyers in the Department.

<snip>

http://www.acsblog.org/separation-of-powers-peter-keisl...

Mukasey is terrible, but he's not a BFEE member- Keisler was one of buhco's attnys in FL and helped stage the infamous "Brooks Brothers protests". Mukasey slapped the admin in the Padilla case. Not much, but my real point is that it's a total catch-22.

[Ian David]

26. Impeach Keisler while voting against nominating Mukasey.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=2118534&mesg_id=2119411

[hatrack]

28. Oh, no argument that (judging by this post) Keisler is indeed an uber-puke

However, if his putative boss is willing to say that whatever the president does to legalize torture "places it within the law", what's the difference?

How is that any better, other than saying that Keisler has more practical experience undermining the judiciary than Mukasy will acquire?

Maybe I'm just being old-fashioned, or naive, or both, but Mukasey is disgusting, and I think that saying "Well, at least he didn't found the Federalist Society" is kind of arguing from a bad premise.

And who knows? Maybe he won't suck quite as much as Gonzalez . . .

[Ian David]

9. I'm sure Joe Biden will vote to confirm him after he makes sufficient noise about it first. n/t

[Ian David]

8. They should have given him a hands-on demonstration.

From now on, when any Democrat is to appear on a screaming-heads TV show, they should have a professional interrogator waiting in the wings to offer the torture-apologists a hands-on demonstration.

[spanone]

18. that's a wonderful response to his 'sudden' ignorance. the judge knows waterboarding

[ProSense]

29. A Welcome Senatorial Challenge

Tuesday, October 23, 2007

A Welcome Senatorial Challenge

Marty Lederman

This is a terrific letter to Judge Mukasey from the ten Democrats on the Senate Judiciary Committee, basically daring him to continue to express agnosticism on the question of the legality of waterboarding.

Most distressing thing about it: No Republican signed.

Potentially the most intriguing: If Mukasey now does not publicly agree that waterboarding is unlawful, could (principled) Dems who signed a letter such as this really vote for him?

Here, by the way, is an excellent column by Phil Carter and Dahlia Lithwick on the subject. The one thing they don't quite get right, I think, is their speculation about why Mukasey would not simply say that waterboarding is unlawful. I don't think it's "secrecy" or an obsession with preserving "absolute authority." (A statement that waterboarding is illegal wouldn't reveal any secrets. And there's no reason to think that Mukasey is committed to preserving the right to use any and all methods of warfare.)

The real explanation lies in the quote that Phil and Dahlia include at the end of their piece: Mukasey's revealing testimony that "there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that." Mukasey can't say that waterboarding is unlawful because OLC has already opined -- several times over, apparently -- that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.

more

[Disturbed]

30. "within the law"

Mukasey: "The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."

So, he "doesn't know" if waterboarding is torture, and states that if the president says torture is A-OK, he is in fact "putting somebody within the law", even if torturing someone is "contrary to statute"?

Isn't he saying that the Pres. can define the Law? If the Pres. says that water boarding isn't Torture then it is "within the Law". Convoluted!!!

[Blackhatjack]

32. If he cannot bring himself to declare 'waterboarding' to be torture, it should be a deal breaker....

At some point people seeking confirmation should not slide by merely stating they do not support torture, but that they don't know what torture is UNTIL THE GOVT TELLS THEM.

He is not only a lawyer, but a judge, and obviously understands the importance of the Nuremburg Trials and the protections granted by the Geneva Convention.

If he can't answer this question, he needs to withdraw or be voted down for confirmation.

[DefenseLawyer]

33. Ohhh a letter!

Wow! That'll show him. Maybe he can read the letter while they are voting to confirm him unanimously. Well sure, another unitary executive nut will be put in charge without opposition, but we had the satisfaction of sending him a letter. Maybe Rush Limbaugh can auction off the letter Ebay. It's a win/win!

[ProSense]

34. "federal statutes, not executive decisions...are 'the supreme law of the land.'"

Lawbreaker in Chief

By JED RUBENFELD
Published: October 23, 2007

New Haven

AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

I practiced before Judge Mukasey when I was an assistant United States attorney, and I saw his fairness, conscientiousness and legal acumen. But before voting to confirm him as the nation’s chief law enforcement officer, the Senate should demand that he retract this statement. It is a dangerous confusion and distortion of the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.

<...>

If he is not, we no longer live under the government the founders established.

Under the American Constitution, federal statutes, not executive decisions in the name of national security, are “the supreme law of the land.” It’s that simple. So long as a statute is constitutional, it is binding on everyone, including the president.

<...>

Beginning with Marbury v. Madison, the Supreme Court has enforced the principle that laws trump presidential authority, not the reverse. In 1952, the court ruled that President Harry Truman’s takeover of the nation’s steel mills — justified by Truman as necessary, because of a threatened steelworkers’ strike, to defend the nation in its armed conflict in Korea — was unconstitutional because the president had flouted federal statutes. And in Hamdan v. Rumsfeld, the Supreme Court’s recent decision on military commissions, the justices reaffirmed that the president must comply with a valid federal statute.

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"federal statutes, not executive decisions...are 'the supreme law of the land.'"