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Oh, Please:
President Bush is now complaining that Attorney General nominee Michael Mukasey is being treated 'unfairly' because some Senate Democrats are opposing his nomination based on his failure to state a position about the lawfulness of waterboarding:
  The White House began a campaign Thursday to save the candidacy of Michael B. Mukasey for attorney general, with President Bush defending him in a speech and in an Oval Office interview, where he complained that Mr. Mukasey was "not being treated fairly" on Capitol Hill.
  With Mr. Mukasey's confirmation in doubt over his refusal to state a clear legal position on a classified Central Intelligence Agency program to interrogate terrorism suspects, Mr. Bush took the unusual step of summoning a small group of reporters into the Oval Office to preview remarks he planned to make later in the day at the Heritage Foundation, a conservative research organization here.
  "I believe that the questions he's been asked are unfair," Mr. Bush said. "He's not been read into the program — he has been asked to give opinions of a program or techniques of a program on which he's not been briefed. I will make the case — and I strongly believe this is true — that Judge Mukasey is not being treated fairly."
  I find this response absurd. To be clear, I support Michael Mukasey for Attorney General; I think he is an excellent candidate. And as I have mentioned before, I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.

  But last I checked, the Constitution creates three branches of government, each with the ability to check the powers of the others. And given the six year history of the relationship between the Bush Administration and Congress since 9/11, objecting to Mukasey on these grounds strikes me as not only absolutely fair but even healthy for the Constitution.

  Consider the context. The Bush Administration asserts that Congress has only limited powers to control the Executive through the traditional tools of legislation. As its many signing statements indicate, the Administration takes the view that it won't follow some kinds of laws that Congress passes but that Congress isn't allowed to know which laws it will or won't follow.

  This is what happened with the laws on torture. When Congress passed a law banning torture in late 2005, the President's signing statement announced vaguely that the Executive branch that must apply the law in secret would do so "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." So what does that mean? The Executive Branch won't say.

  If you're in the Senate and you actually want to have a role in "making the law" or even just want to know how it's being interpreted — kind of a traditional view, I would think — that leaves you with limited options. One option would be to take the appropriations route and try to cut off any funding for waterboarding or similar practices. But the same President who issued the signing statement presumably would veto that. So unless you have a veto-proof 2/3 majority, that isn't likely to work.

  Your only other option is to fall back the one check that the President can't veto or interpret out of existence: Article II, Section 2's "Advice and Consent of the Senate" condition on senior Presidential appointments. If the Executive says its officers will interpret your laws only "in a manner consistent with . . . the unitary executive branch and [the] Commander in Chief" power, but won't actually tell you what that means, your one and maybe only straightforward tool for finding out what that means is refusing to confirm Presidential nominees who won't take a stand and tell you what position they will take. It's a modest tool, because there are always recess appointments. But at least it's something.

  I think it's unfortunate that Mukasey's confirmation could be blocked by this. He's not the problem, and I think he will be a very good Attorney General if confirmed. But checks and balances are a good thing, not a bad one, and the Framers designed the Constitution that way for a reason. Given that, the idea that it is somehow "unfair" for the Senate to exercise this one modest tool Bush has left the Senate to have a role in interrogation policy strikes me as absurd.

  UPDATE: Some commenters seem to have misinterpreted my post, so let me clarify. First, President Bush has every right to nominate who he wants as Attorney General. Second, President Bush has every right to make absurd arguments in support of his nominee to try to pressure Senate Democrats to confirm his nominee. My point is not about "rights," but about whether the President's argument is weak or strong. I think the argument is very weak, and that point has nothing to do with the "rights" of the President.
Anderson (mail):
kind of a traditional view, I would think

Ouch.
11.2.2007 12:45pm
PatHMV (mail) (www):
I disagree, Orin. As you note, Mukasey's not the problem. The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area. It's entirely appropriate for the President to announce that he's not going to send them a nominee whose views are different in this area.

Congress could certainly pass a law which would provide that waterboarding is torture and forbid it, both by civilian employees of the Executive and by members of the military. In fact, when they passed the no torture law not that long ago, they bogged down over whether to specifically prohibit waterboarding, and a compromise was reached to pass a law that wasn't clear on that point, so that both sides could claim a bit of victory.

The Senate shouldn't refuse to confirm a nominee for Attorney General simply because he recognizes that Congress itself has not prohibited waterboarding specifically and thus believes, quite rationally, that it remains a policy choice open to the President.
11.2.2007 12:53pm
David M. Nieporent (www):
He’s not been read into the program — he has been asked to give opinions of a program or techniques of a program on which he's not been briefed.
This objection is absurd anyway. He's being asked to give his opinion, not to render a legal judgment. If he gives his opinion, and then when confirmed he gets briefed and new facts that he learns cause him to change his mind, what's the problem? Besides political embarrassment, I mean?
11.2.2007 12:54pm
wm13:
Interesting, because when Congress invoked another rather clear constitutional power, the power to impeach for criminal activity, any number of lefty law professors were ready to pronounce it an unconstitutional seizure of power. So I guess the academy's position is that Congressional power is proper when used by Democrats against Republicans, but not vice versa.
11.2.2007 12:57pm
PatHMV (mail) (www):
I mean, how is it really different for the Senate to decide, as a matter of policy, that it won't consent to nominees who don't share some Senators' view on waterboarding, than for the President to decide, as a matter of policy, that he won't nominate nominees who don't share the President's view on waterboarding?

Your answer to this is not based on your view about waterboarding as a good or bad policy, as you clearly acknowledge. It appears that your approval of the Senate exercising its prerogatives and your disapproval of the President exercising his is based on a general discomfort with the conduct of the Administration (your opposition to the signing statements, etc.).
11.2.2007 12:57pm
Anderson (mail):
The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.

Right! Whatever that secret policy is. Remind me please why the Senate is not supposed to do that?

Congress could certainly pass a law which would provide that waterboarding is torture and forbid it

I think they thought they already had, which is a good reason not to enact a specific prohibition in a new law - it risks the inference that it *wasn't* illegal before.

This is of course a classic occasion for the "Bush Hillary" heuristic. President HRC says that she is bound by statutes only insofar as they don't hamper her secret operations in the war on terror, but she can't explain what that means, because It's A Secret ....
11.2.2007 12:59pm
Brooklynite (mail) (www):
You're misrepresenting what's going on, Pat.

It's not that Mukasey is taking a position on waterboarding that Senators don't like, and being punished for it, it's that he's refusing to take any position at all. The president isn't saying that it's unfair to vote against Mukasey because of his position on the issue, he's saying it's unfair to ask him what his position is.
11.2.2007 1:02pm
Houston Lawyer:
And Hillary is being treated unfairly because she is a woman. I detest the whole whining nature this type of complaint, regardless of its source.

If the Democrats want to establish a litmus test for the attorney general, they are free to do so. I'll have no sympathy if it comes back to haunt them later.
11.2.2007 1:02pm
Anderson (mail):
So I guess the academy's position is that Congressional power is proper when used by Democrats against Republicans, but not vice versa.

Right. I'm *sure* that's what Orin Kerr's position is. He being a notorious left-winger and all that.
11.2.2007 1:02pm
Richard Aubrey (mail):
He gets to complain.
That's how you pressure another institution.
11.2.2007 1:04pm
Anderson (mail):
It's not that Mukasey is taking a position on waterboarding that Senators don't like, and being punished for it, it's that he's refusing to take any position at all.

This may be literally true, but I think it's fair to say that a fair number of Democratic Senators have given a pretty good indication that there's a right answer, and a wrong answer.
11.2.2007 1:05pm
CEB:

The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.

Is that not its prerogative?
11.2.2007 1:05pm
rarango (mail):
Gee--you mean there is a certain amount of partisan politics involved in confirmations" Shocked, I am, to hear that! Thats OK--all Bush has to do is appoint Mukasy as acting AG and both sides can claim victory and continue to beat each other up for their respective failures.
11.2.2007 1:05pm
Brett Bellmore:

The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.


Cool. They're entitled to do that. It's when they refuse to permit a nominee to be voted on that they lose me. But, reject a nominee? Clearly within their power.
11.2.2007 1:07pm
Horatio (mail):
Can you spell R-E-C-E-S-S A-P-P-O-I-N-T-M-E-N-T?

A pox on all the branches. TIme to follow Jefferson's hope

"God forbid we should ever be twenty years without such a rebellion... We have had thirteen States independent for eleven years. There has been one rebellion. That comes to one rebellion in a century and a half, for each State. What country before ever existed a century and a half without a rebellion?" --Thomas Jefferson to William S. Smith, 1787. ME 6:372
11.2.2007 1:07pm
Patrick Joy:
So the President can not complain that the Senate is blocking the nominee because he shares the same opinion the Senators hoold namely that Waterboarding is not illegal and the US does not torture? OK I think both the blocking and complaining is perfectly legitimate as part of the process.
11.2.2007 1:09pm
Ben P (mail):

It's not that Mukasey is taking a position on waterboarding that Senators don't like, and being punished for it, it's that he's refusing to take any position at all. The president isn't saying that it's unfair to vote against Mukasey because of his position on the issue, he's saying it's unfair to ask him what his position is.


I'm not sure that's entirely fair.

Mukasey was asked if he would define waterboarding as torture. (which would make it illegal)

This is a subtly different question from asking him to pass judgment on an existing program.

Bush's objection to him being asked about this (and voted down because of his response) is that he's "Not been briefed into the program."

Him refusing to take a position on whether or not waterboarding is torture shouldn't necessarily require inside knowledge of what's been done.
11.2.2007 1:11pm
AnonLawStudent:
I'll second Pat's comment. I think it's clear that "unitary executive" means that cabinet officers should be viewed as agents (with all that term imports) of the President, and that certain powers are vested exclusively in the President (i.e. those powers can't be checked or regulated by Congress). Taking this view, it is not appropriate for the Senate to use a "check" to try and force the principal (the President) to accept an agent who disagrees with him in a significant manner. Mukasey is unquestionably qualified - he was approved by Chuck Schumer, after all - the only hold up is an unwillingness to commit to a position that might conflict with his principal.
11.2.2007 1:13pm
Thales (mail) (www):
President Bush has lost any credibility when it comes to claims of unfair treatment of his people. It is eminently reasonable to ask the nominee questions about how he will do his job, which includes enforcing and interpreting the law and counseling the President on same (e.g., in his capacity as head of the department that OLC is a part of). The same is true of judicial nominees and asking real questions about judicial philosophy and their views of past cases. Mukasey will leave his mark on DoJ as an institution long after Bush leaves office, and it's important to get it right. Fleshing out the prospective AG's views of the President's so-called inherent authority under Article II is important for all of us, regardless of who actually sits in the office of the President.
11.2.2007 1:14pm
PatHMV (mail) (www):
CEB and Brett Bellmore, I agree it is within the Senate's prerogative to do that. Where I disagree with Orin is his suggestion that it's not the President's prerogative to refuse to submit nominees who will bend to the Senate's will on that issue. In my first comment, my last paragraph was expressed unclearly. I should have said that I don't think that the Senate should refuse to confirm for those reasons, but it is certainly their legitimate prerogative to do so.

Both the Senate and the President are using the political tactics available to them, and they will both be judged by the electorate in the court of public opinion for their actions.

As as matter of policy, I think the issue of waterboarding is far less crucial than the issue of the general operations and supervision of the Justice Department. Mukasey represents a very positive step in improving those operations, and he was hardly the president's first choice in part because of the changes he will make there. I think the Democrats would be wise to recognize that this is the best nominee they're getting out of this President, and confirm Mukasey.
11.2.2007 1:18pm
Guest101:
While I agree with Orin, this doesn't seem a politically wise fight for the Democrats to have picked to me. Mukasey is, by all accounts, a highly competent and qualified individual who would return a level of professionalism and integrity to the DOJ that it is sorely in need of at the moment. Moreover, he was something of a compromise nominee, much less of a lightning rod for partisan opposition than Olson or Chertoff would have been. Finally, the Democrats have to know that they're never going to get a nominee who's willing to say that the administration's current practices are illegal (and Bush would probably pull the nomination in a heartbeat if someone did), while all that I've heard about Mukasey suggests that he would be likely to work behind the scenes once confirmed as a more effective break on Bush's abuses than Gonzales or Ashcroft were (or than Olson or Chertoff would be). By picking this stupid fight the Democrats have put themselves in a situation where they can't back down without looking weak, Mukasey can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
11.2.2007 1:20pm
Anderson (mail):
and that certain powers are vested exclusively in the President (i.e. those powers can't be checked or regulated by Congress)

Name them, please, or failing that, please explain whether the practice of torturing prisoners is one of those "certain powers."
11.2.2007 1:23pm
Adam J:
AnonLawStudent- Interesting analysis, so you claim that your theory of constitutional law (unitary executive) trumps the explicit text of the Constitution (the appointment clause).
11.2.2007 1:28pm
D Palmer (mail):
Orin I am going to disagree with you here. It is very unfair of the Democrats to demand that Mukasey state a legal opinion when he doesn't have the facts in front of him.

Plus, the Democrats practically demanded the right to select the replacement for Gonzales, a responsibility assigned to the President by the constitution. Then, when given a candidate that appears to meet the requirements that they set up, they find a new way to say no.

This crap should stop. Vote on the nomination. Either approve or deny him, that is the role assigned Congress. The right to deny the vote makes a mockery of the "advise and consent" clause.
11.2.2007 1:32pm
Pon Raul:
Orin,

It is perfectly reasonable for the President to say that someone is being treated "unfair." He is making a substantive moral political argument. That is how politics work. Both sides say that the other is being unfair, wrong, evil, etc. I don't believe that he is saying that the Senate doesn't have constitutional power to vote based on this "unfair" treatment.
11.2.2007 1:33pm
Badger (mail):
Flashback to 2004:

While I agree with Orin, this doesn't seem a politically wise fight for the Democrats to have picked to me. [Gonzales]is, by all accounts, a highly competent and qualified individual who would return a level of [moderation] and [open-mindedness] to the DOJ that it is sorely in need of at the moment. Moreover, he was something of a compromise nominee, much less of a lightning rod for partisan opposition than Olson or [Terwilliger] would have been. Finally, the Democrats have to know that they're never going to get a nominee who's willing to say that the administration's current practices are illegal (and Bush would probably pull the nomination in a heartbeat if someone did), while all that I've heard about [Gonzales] suggests that he would be likely to work behind the scenes once confirmed as a more effective break on Bush's abuses than Gonzales or Ashcroft [was](or than Olson or [Terwilleger] would be). By picking this stupid fight the Democrats have put themselves in a situation where they can't back down without looking weak, [Gonzales] can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
11.2.2007 1:34pm
Pon Raul:
Orin,

I should add that I think that your comment is "absurd" because you are clearly overstating Bush's argument.
11.2.2007 1:35pm
CDU (mail):
I agree with Horatio that a recess appointment is likely if the Senate doesn't confirm Mukasey. This kind of puts the Democrats in a pickle since whoever the President appoints will probably be someone much less acceptable to them and more politically beholden to the president than Mukasey. Even with the best intentions in the world, I don't think there's any way a recess appointment is going to be able to clean up the current mess in the DoJ as well as an Attorney General with congress' imprimatur.
11.2.2007 1:38pm
Guest101:
Badger,

You might have a point if any of the things I said about Mukasey could have been said about Gonzales in 2004. But they weren't; the nominees and the context are completely different, so I don't see that your exercise in editing is worth much.
11.2.2007 1:40pm
TruePath (aka logicnazi) (mail) (www):
PatHMV:

I think you misunderstand Orin's point. I at least didn't read him as saying that the president shouldn't have every right to nominate candidates that share his views. Only that if they are blocked as a result of this it's absurd for him to complain that this is 'unfair' treatment.
11.2.2007 1:43pm
Mikey:
I'd like to offer up two points.

One, no answer Mukasey gives will be a good one. Torture is illegal, the administration authorizes waterboarding, therefore if he is asked "Is waterboarding torture?" and answers "Yes," then he's saying the administration is breaking the law. If he says "No" or waffles (as he did), his nomination may die in committee. Either way, he can't give a "right" answer.

The second point is that we don't have anything approaching an adequate definition of "torture." We are all, by now, pretty well aware of how waterboarding is conducted, and that it does not physically harm those subjected to it. Therefore, we have to ask if the mental distress experienced constitutes torture. I don't think anyone has really answered that.

So, while Orin is correct that it is not inherently "unfair" for the Senate to act as it is regarding Mukasey, some of their methods could be viewed that way.
11.2.2007 1:45pm
Anderson (mail):
Orin I am going to disagree with you here. It is very unfair of the Democrats to demand that Mukasey state a legal opinion when he doesn't have the facts in front of him.

They didn't ask, did they, "is waterboarding as practiced by the CIA torture?" They asked if waterboarding is torture.

As Hilzoy puts it:

There is an easy way for Mukasey to get around the fact that he has not been briefed on what the CIA did: just define waterboarding, say whether waterboarding so defined is torture, and add that not having been briefed on what the CIA did, he doesn't know whether or not what they did meets his definition. That Mukasey has not taken this obvious route suggests that he is not motivated by his own uncertainty, but by the desire to keep people he believes have engaged in torture from being punished for their crimes.

That last is, regrettably, a perfectly valid inference, even if Hilzoy is optimistic about the prospects of anyone's being prosecuted.

Still, it's something I don't see in profiles of Cheney or Addington. They are said to be intent on allowing torture as a necessary tool against terrorism. What I don't recall seeing is that they are covering their own asses.
11.2.2007 1:45pm
Anderson (mail):
If he says "No" or waffles (as he did), his nomination may die in committee. Either way, he can't give a "right" answer.

You have GOT to be kidding me.

Mukasey "can't" say what he thinks, under oath, to the United States Senate, because he might not be confirmed to a position of authority as a result???

Is it your view, then, that Mukasey has no ethics whatsoever? Can we get the President to confirm that?
11.2.2007 1:48pm
AnonLawStudent:
Anderson/Adam,

I'm not defending the unitary executive theory, just stating its import. Prof. Kerr argued that its use in a signing statement was "vague[]." As used in academic writing, "unitary executive" has a reasonably well-understood meaning. That being said:

(1) The appointments clause doesn't define "advice and consent;" the practice as it currently stands is defined only by tradition. Given that "the Executive power shall be vested in a President," a strong argument can be made that "advice and consent" in the case of officers is intended to assure minimal qualification only. That those officers are agents of the President is derived from the vesting of executive power solely in the President, and his absolute power to fire them at will.

(2) Examples of powers that are totally vested in the include the power to prosecute and the commander-in-chief power. Although Congress has the power to "make Rules for the Government and Regulation of the land and naval Forces" and to use the power of the purse to control military functions, it cannot prevent the President from taking actions that he believes necessary to the defend the nation. Hence the consensus that post-Vietnam rescue operations in SE Asia were legal despite various appropriations provisions restricting military expenditures in that theater of operations.
11.2.2007 1:48pm
Floridan:
It seems to me that if Judge Mukasey will not disagree with the administration's position, he should just say so and let the chips fall where they may.

If, on the other hand, he does not agree with Bush on waterboarding, then his refusal to answer is very telling in how he will carry out the duties.
11.2.2007 1:53pm
Mikey:

If he says "No" or waffles (as he did), his nomination may die in committee. Either way, he can't give a "right" answer.

You have GOT to be kidding me.

Mukasey "can't" say what he thinks, under oath, to the United States Senate, because he might not be confirmed to a position of authority as a result???

Is it your view, then, that Mukasey has no ethics whatsoever? Can we get the President to confirm that?


He can give any answer he damn well pleases, even if he knows he won't be confirmed because of it.

However, he can't give a "right" answer to that question as far as those questioning him are concerned.

Clearer, now?
11.2.2007 1:55pm
Badger (mail):
Associated Press:

"Even before the formal announcement, one Senate liberal welcomed the appointment of "someone less polarizing" to the position. "We will have to review his record very carefully, but I can tell you already he's a better candidate than John Ashcroft," said Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee."



Washington Post:

"The move also means that departing Attorney General John D. Ashcroft, a darling of the conservative movement, would be replaced with a figure viewed with some suspicion by the Republican right. By choosing loyalty over ideology in the first major personnel decision after his reelection, Bush signaled a desire for calmer and quieter times at Justice, officials said"
11.2.2007 1:56pm
Thoughtful (mail):
They should ask Mukasey if testifying before a Senate Committee constitutes torture...
11.2.2007 2:02pm
Floridan:
oops . . .should be "duties of the Attorney General's office."
11.2.2007 2:04pm
Guest101:
Badger,

Oh. Well, ok then. Those statements look a little foolish in retrospect, though I still think that Mukasey's long public record bespeaks a degree of independence and integrity lacking in Gonzales. In any case, I'm not arguing that the Senate should rubber-stamp any AG nomination, but only that it's politically unwise to derail an otherwise very strong nominee by forcing him into a no-win situation that is going to be common to any nominee, and which will likely result in either a recess appointment or a subsequent nomination of someone even less acceptable.
11.2.2007 2:06pm
scote (mail):
OK wrote:

I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.


Well, I guess you are on the same page on that issue--which, frankly, I find appalling. Maybe it's time you study the issue so that you can have an educated opinion on the matter. While I realize that you are often very reserved and prudent in your legal opinions this is one case where I don't buy the "I don't know enough to have an opinion" argument. I really don't think there is a nuanced and valid, waterboarding is not torture argument.
11.2.2007 2:08pm
Mark Field (mail):

Given that "the Executive power shall be vested in a President," a strong argument can be made that "advice and consent" in the case of officers is intended to assure minimal qualification only.


There are at least two very significant problems with this argument. The first one is textual. The appointments clause is part of the very same sentence as the treaty clause. Surely you would not argue that the Senate should apply to treaties the same standard you want to apply to appointees.

The second problem is that your claim about presidential power is contradicted by Federalist 76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. ...

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier [sic] branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." Emphasis added.
11.2.2007 2:11pm
byomtov (mail):
However, he can't give a "right" answer to that question as far as those questioning him are concerned.

Sure he can. He can say, yes, it's torture. All this business about not being briefed, etc., is complete nonsense. Despite Bush's statement, Mukasey is not being asked to opine about the CIA's activities. He is being asked about a specific defined practice, which the CIA may or may not be using. There is nothing stopping him from answering.

Suppose he were asked whether the rack is torture. Would he be unable to answer until he was briefed on the CIA's program? Of course not. It's an absurd dodge and Mukasey's failure to respond is indefensible.
11.2.2007 2:11pm
PLR:
As far as I'm concerned, anyone who refuses to answer perfectly legitimate questions in his or her appointment hearings deserves to be treated as having given the most unfavorable answer.

That goes for judicial nominees also. How is it that polls show a microscopic percentage of people who are "undecided" about Roe v. Wade and its progeny, and yet the universe of federal judicial appointees seems almost unanimously undecided?
11.2.2007 2:12pm
hattio1:
Ben P makes an excellent point (which was echoed by other commentaters);

Him refusing to take a position on whether or not waterboarding is torture shouldn't necessarily require inside knowledge of what's been done.

This is the whole crux of the issue. The only way Mukasey could possibly need to be briefed is if 1) His position on waterboarding being torture is dependant on whether waterboarding is being done by US personnel 2) The US is practicing a specific form of waterboarding that somehow differs from the popular conception.
If the reason he won't answer is 1), then, in my opinion, he is not at all qualified to be AG. If it is 2), then somebody already gave his easy out. Define waterboarding in a specific way, then give your opinion.
11.2.2007 2:12pm
Frater Plotter:
Any nominee for Attorney General who fails to acknowledge that waterboarding is not torture either (a) is lying, or (b) doesn't understand one of the most important human-rights issues of the day. The first disqualifies that person from the position in question on moral grounds. The second disqualifies him or her on grounds of competence.

This is not a matter of rendering a legal decision. It is a matter of rendering a moral decision, the outcome of which shows whether the character of the nominee is suitable more to the position of US Attorney General or to the position of SS-Obersturmbannführer. Professing ignorance on the subject, on the other hand, shows a calculated unawareness of the issue.

It is completely in the public interest for the Senate to ascertain whether a nominee is qualified for the position. A nominee who will lie to excuse the violation of human rights is morally unsuitable to represent the United States in court. A nominee who does not realize that waterboarding is torture is either irresponsibly unaware, or is deliberately holding him- or herself in a condition of denial for political reasons. (This latter phenomenon was named "doublethink" by George Orwell, by the way.)
11.2.2007 2:15pm
CDU (mail):
This is the whole crux of the issue. The only way Mukasey could possibly need to be briefed is if 1) His position on waterboarding being torture is dependant on whether waterboarding is being done by US personnel 2) The US is practicing a specific form of waterboarding that somehow differs from the popular conception.


Actually, I think there's a third possibility. We know that the Justice Department has already given multiple (secret) legal opinions about the legality of various interrogation techniques. Mukasey was a federal judge after all, he may not want to give an opinion on the legality without familiarizing himself with the precedent and making a conscious decision on whether to overrule it. The issue here may not be what US personnel are doing, but what US government lawyers have previously said.
11.2.2007 2:23pm
Anderson (mail):
it cannot prevent the President from taking actions that he believes necessary to the defend the nation

Pooh. That is not what the commander-in-chief power means at all. He has supreme command of the armed forces - that doesn't mean he can do whatever he likes if he thinks it's necessary to defend the country.
11.2.2007 2:24pm
hattio1:
An earlier commenter stated that if Mukasey's nomination fails, Democrats will probably get someone they like less in a recess appointment. Is this really a good possiblity? It seems that if Bush appoints someone else via recess appointment, he's sort of admitting he only nominated Mukasey because of pressure from the Dems. It's also sort of admitting he didn't nominate the person who is most qualified.
11.2.2007 2:26pm
ronnie dobbs (mail):

Any nominee for Attorney General who fails to acknowledge that waterboarding is not torture either (a) is lying, or (b) doesn't understand one of the most important human-rights issues of the day. The first disqualifies that person from the position in question on moral grounds. The second disqualifies him or her on grounds of competence.

This is not a matter of rendering a legal decision. It is a matter of rendering a moral decision, the outcome of which shows whether the character of the nominee is suitable more to the position of US Attorney General or to the position of SS-Obersturmbannführer. Professing ignorance on the subject, on the other hand, shows a calculated unawareness of the issue.

It is completely in the public interest for the Senate to ascertain whether a nominee is qualified for the position. A nominee who will lie to excuse the violation of human rights is morally unsuitable to represent the United States in court. A nominee who does not realize that waterboarding is torture is either irresponsibly unaware, or is deliberately holding him- or herself in a condition of denial for political reasons. (This latter phenomenon was named "doublethink" by George Orwell, by the way.)


Ding, ding, ding! We have a Godwin's Law winner!
11.2.2007 2:28pm
CDU (mail):
This is not a matter of rendering a legal decision. It is a matter of rendering a moral decision


Mukasey has already said he finds waterboarding "repugnant", so if it's a moral judgment you want, I think he's already given it. What the Judiciary Committee has asked explicitly for is a legal opinion, not a moral one.
11.2.2007 2:29pm
OrinKerr:
Scote,

If you have an educated opinion on the legality of waterboarding, I would ask that you post it in this thread along with your citations and counterarguments to the legal claims of those who defend the practice. That way you can help educate me, and if I am persuaded by your legal analysis I will write a post explaining why I think the practice is illegal (and I will be sure to thank you by "name" for helping to educate me).

Orin
11.2.2007 2:30pm
AnonLawStudent:
Mark Field,

Textually, you are correct that that the Constitution establishes a different standard for approval of treaties. "[P]rovided two thirds of the Senators present concur" is a modifier of "advice and consent," which argues that "advice and consent" means something else than two thirds approval. That something else remains undefined by the test.

As to your cite Federalist 76: For starters, your quote from is focused on prevention of nepotism, i.e. limiting appointments to those who possess the requisite qualifications. If we're going to start quoting Framers, why pick that particular Federalist over, say, George Washington, who explaining the Appointments Clause, said that “[t]he impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 333, 334 (May 25, 1789); cf. In re Neagle, 135 U.S. 1, 63 (1890) (President’s authority to appoint and commission officers is “the means of fulfilling” his obligation under the Take Care Clause).

I never said that counterarguments don't exist. I stand behind my claim that a strong argument can be made.
11.2.2007 2:31pm
hattio1:
CDU
That is not a possibility that occurred to me. You may be right, that could be his motivation. However, it seems to me Mukasey would be mistaken in his desire to see "precedent." There is no precedent. Prior justice department opinions are just that, opinions. They hold no legal weight. If you worked at a firm which had (in the past) represented a corporation and told them a particular act was legal, would you refuse to give an opinion that differed from your firm? Wouldn't it be your ethical duty to warn the corporation that continuing to do the act could be illegal.
11.2.2007 2:33pm
ejo:
still no definition of torture, just your personal feelings? severe pain-seems not; prolonged and severe mental distress-arguable but it is alleged not too last long. has congress ever defined it as torture-no. have they had the opportunity to do so but not taken the leap-most definitely. has it been shown to be effective-anecdotally yes, perhaps its greatest sin.
11.2.2007 2:35pm
scote (mail):

Scote,

If you have an educated opinion on the legality of waterboarding, I would ask that you post it in this thread along with your citations and counterarguments to the legal claims of those who defend the practice. That way you can help educate me, and if I am persuaded by your legal analysis I will write a post explaining why I think the practice is illegal (and I will be sure to thank you by "name" for helping to educate me).

Orin


I think I may have underestimated your talent for snark! Point OK.

However, I'm not the eminent constitutional legal scholar. While I appreciate the opportunity, it is not incumbent upon me to educate you on the law.

All of this splitting of hairs over whether waterboarding is torture reminds me of how Catholic clergy weren't allowed to "shed blood" but were free to kill, maim and torture as long as that didn't happen. So they used blunt, crushing maces in battle and the rack, thumbscrews, stress positions (which can kill, BTW) and waterboarding for torture and roasting alive for execution. The very idea that there could be a legal interpretation that could allow waterboarding to be legal is along the similar ridiculous and untenable lines.
11.2.2007 2:39pm
AnonLawStudent:
Anderson,

If you're going to pooh, give cites. I'll show you mine:

See, e.g., Campbell v. Clinton, 203 F.3d 19, 27-28 (D.C. Cir. 2000) (Silberman, J., concurring) (reading The Prize Cases, 67 U.S. 635 (1863), as standing for the proposition that “the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."

So we're clear that Judge Silberman doesn't stand alone on this issue, see also William H. Rehnquist, The Constitutional Issues – Administrative Position, 45 N.Y.U. L. Rev. 625, 638-639 (1970) (arguing that once Congress authorizes a war, it cannot restrict prosecution of that war)

Or if you want recourse to the Framers, cf. Max Farrand, 2 Records of the Federal Convention of 1787 318-19 (1911) (particular emphasis is given to the statement of Rufus King, expressing concern “that ‘make’ war might be understood to ‘conduct’ it which was an Executive function”).
11.2.2007 2:40pm
SteveIL (mail) (www):
Here's my problem with all of this. The whole question revolves around whether or not waterboarding is torture and/or illegal. Congress could say that it is whenever they want, as part of their Article I powers to create legislation, and end the mystery. It is not in the Constitution that a nominee to become the Attorney General creates legislation.
11.2.2007 2:40pm
Laura S.:
Orin: Its called gaming the system. Yes the Congress can put pressure on the executive in this fashion but it is underhanded and dishonest.

If congress believes that the president is substantially failing to faithfully enforce the law, they should start an impeachment investigation.
11.2.2007 2:42pm
CDU (mail):
I'm not a lawyer, but from what I've read, opinions written by the Justice Department's Office of Legal Counsel do have legal weight. Government employees are protected from later criminal or civil liability if they acted within the bounds of an OLC opinion (which was why there was such a big brouhaha when Jack Goldsmith withdrew John Yoo's OLC opinion that contained an infamously narrow definition of torture). Mukasey may be concerned that this protection would be compromised if the Attorney General contradicts it, but since the opinions on torture and interrogation are secret, he can't even know if what he says contradicts them (forget Orwell, here comes Joseph Heller).

Of course, the administration could help solve this by clearing Mukasey to read the previous OLC opinions on the subject and briefing him on the interrogation program , but frankly I think hell will freeze over first.
11.2.2007 2:47pm
Kevin P. (mail):
So if waterboarding is so clearly torture, why doesn't Congress simply pass a law declaring it to be torture? That would be the end of the discussion.

Or maybe they don't have the votes to do it. Or maybe, some in Congress actually feel that torture may occasionally be justified.
11.2.2007 2:49pm
Brooklynite (mail) (www):
He can give any answer he damn well pleases, even if he knows he won't be confirmed because of it.

However, he can't give a "right" answer to that question as far as those questioning him are concerned.


He can't give an answer that will please both the president and those who are questioning him, because the presdent and the questioners are looking for different answers. I don't see how that makes the question unfair, though.
11.2.2007 2:49pm
Mark Field (mail):

you are correct that that the Constitution establishes a different standard for approval of treaties.


I, of course, said the exact opposite.


"[P]rovided two thirds of the Senators present concur" is a modifier of "advice and consent," which argues that "advice and consent" means something else than two thirds approval.


This argument is silly. The two-thirds requirement merely changes the vote total required, not the need to "advise and consent". That need is the same for both treaties and appointments.


For starters, your quote from is focused on prevention of nepotism


It certainly mentions nepotism, but it is far from limited to that subject. It shouldn't be that difficult -- I put the relevant passage in bold.


If we're going to start quoting Framers, why pick that particular Federalist over, say, George Washington


Your quote from Washington is not inconsistent with Federalist 76. It supports a weak claim for a unitary executive -- one with which I think most everyone agrees -- but not the stronger claim you are trying to make.
11.2.2007 2:49pm
Unintended Consequences:
All of this umbrage over waterboarding will be forgotten much like the atrocities that U.S. Marines used to suppress the Philippine rebellions around the turn of the last century.

But, mind you, waterboarding is torture, no question about it. Congress should expeditiously outlaw it, but of course, we can foresee signed statements from the White House that say that the law is inapplicable with respect to certain classes of detainees (AKA designated "Al Qaeda" members).

In the long run, we have stepped into a slippery slope constitutionally that will deform our republic for years to come.
11.2.2007 2:50pm
Mark Field (mail):

The whole question revolves around whether or not waterboarding is torture and/or illegal. Congress could say that it is whenever they want, as part of their Article I powers to create legislation, and end the mystery.


So, in your view, if Congress passed a law saying that the rack and the wheel are not torture, you think the courts would uphold that?
11.2.2007 2:53pm
cboldt (mail):
The "legality" of waterboarding is a mixed bag. It depends on what one means by "illegal."

.

My read of P.L 109-366 finds waterboarding to come short of the lines drawn in section that defines the "war crimes" of torture and cruel and inhuman (see 18 USC 2441(c) and (d)), because waterboarding is highly unlikely to cross the damage thresholds recited therein, and incorporated by specific reference to 18 USC 1365 and 18 USC 2340(2).

.

But, at the same time, a separate section of P.L. 109-366 (new 42 USC 2000dd-0) proscribes "cruel, inhuman, or degrading treatment or punishment", but does not provide any mechanism for court-imposed enforcement.

.

Congress passed that law. Most of the members know they created more smoke than clarity.

.

I do agree with Orin that President Bush's complaint is weak. But the Senate's complaint is weak too. I predict that more smoke will be emanating, followed by the confirmation of Mukasey with an historically high number of NAY votes.
11.2.2007 2:53pm
Zathras (mail):
Orin,

Have you seen Mart Lederman's arguments on the legality of waterboarding over at Balkinization? Here is a good place to start.
11.2.2007 2:53pm
Patrick216:
At the end of the day, Michelle Malkin's comment about this is on point. Specifically, she mentioned that Mukasey was picked over Ted Olson because Olson was too "controversial" and would have picked a fight with the Democrats on the Judiciary Committee. So the GOP went with the "safe" candidate, Mukasey, who was supposed to be a consensus candidate who would sail through.

So much for that.
11.2.2007 2:55pm
Zathras (mail):
As Marty quotes there,

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.
11.2.2007 2:55pm
Dave N (mail):
cboldt,

I agree with your analysis except for the last phrase in the last sentence. "followed by the confirmation of Mukasey with an historically high number of NAY votes."

Since John Ashcroft was confirmed by a vote of 52-48, I can't imagine how Mukasey could do worse and still be confirmed, short of a 51-49 or 51-50 confirmation vote.
11.2.2007 3:04pm
Anderson (mail):
Anon, your own case you quote does not support the notion that the President can act in contravention of Congress.

The relevant authority is of course Youngstown Steel, which I trust you (unlike Yoo) have heard of.

As for Rehnquist's wish-list, it tells me a lot about Rehnquist, but not much else.
11.2.2007 3:06pm
OrinKerr:
Scote,

I'm a bit confused. First you write:
Maybe it's time you study the issue so that you can have an educated opinion on the matter. While I realize that you are often very reserved and prudent in your legal opinions this is one case where I don't buy the "I don't know enough to have an opinion" argument. I really don't think there is a nuanced and valid, waterboarding is not torture argument.
Then, when I ask you to explain your position, you decline, writing:
I'm not the eminent constitutional legal scholar. While I appreciate the opportunity, it is not incumbent upon me to educate you on the law. . .. All of this splitting of hairs over whether waterboarding is torture reminds me of how Catholic clergy weren't allowed to "shed blood" but were free to kill, maim and torture as long as that didn't happen. So they used blunt, crushing maces in battle and the rack, thumbscrews, stress positions (which can kill, BTW) and waterboarding for torture and roasting alive for execution. The very idea that there could be a legal interpretation that could allow waterboarding to be legal is along the similar ridiculous and untenable lines.
But how do you know that the very idea that there could be such an argument is "untenable" if you do not in fact know the arguments that could be made?

I think that's why I have stayed away from this issue. I find a lot of people arguing that waterboarding must be illegal because it's "ridiculous" or "immoral" to even contemplate legal arguments. But if you don't contemplate the legal arguments, how do you know they are wrong? If the arguments are in fact ridiculous, then it should be trivially easy to shoot them down: I would think that you would be eager to explain why you reached the conclusion you have.
11.2.2007 3:07pm
CDU (mail):
From the articles I've read, the current consensus seems to be that Mukasey will get around 70 votes on the floor (much higher than Ashcroft, as Dave N points out). The problem lies in getting his nomination out of the Judiciary Committee. It looks like it's either going to be a party-line vote to reject him, or one or two Democrats will break ranks to send the nomination to the floor.
11.2.2007 3:09pm
cboldt (mail):
Re: Ashcroft confirmation vote: The vote wasn't 52-48, it was 58-42.

.

I'll concede that Mukasey may not garner more than 42 NAY votes, but I think he's in contention for the record.
11.2.2007 3:14pm
Anderson (mail):
Josh Marshall concurs with CDU on Mukasey's prospects, and finds it implausible that he won't get out of committee.
11.2.2007 3:15pm
AnonLawStudent:
Mark Field,

You seem awfully certain about the meaning of "advice and consent." The Framers themselves weren't sure of it's meaning. The idea that "advice and consent" occur after submission of a nominee by the President was only established at the insistence of President Washington. In fact, the "advice and consent" requirement was itself a compromise which, like many others, was left intentionally hazy. To wit, Benjamin Franklin worried that "[t]he Executive will always be increasing, here as elsewhere, til it end in Monarchy," whereas John Adams cautioned that "[f]action and distraction are the sure and certain consequences of giving to a senate a vote on the distribution of offices." Again, the interpretation of the less than clear language is based largely on tradition.
11.2.2007 3:16pm
AntonK (mail):
Kent Scheidegger's argument simply outclasses Orin Kerr's:


In the constitutional system of checks and balances, the separation of powers is not total. The President exercises legislative power in the veto. The Senate exercises executive power in its advice and consent function. There are a few other examples. These checks on other branches' powers are important, but they should be used sparingly. The President should sign almost every bill Congress sends him, and historically he has. Similarly, the Senate should confirm the vast majority of nominees, and historically it has. Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function. Instead of asking whether the nominee thinks that general law X allows specific practice Y, Congress can and should pass a statute specifically governing Y. If the members concerned about Y can't pass the statute because they can't convince a majority of their colleagues of their position, then the nominee's views are not so far outside the mainstream as to justify not confirming him.


[OK Comments: Can you articulate why you think Kent's argument "simply outclasses" mine? Kent curiously ignores the President's signing statement, which says that the Executive will interpret the law "in a way consistent with the Commander in Chief power" without saying what that means. Given that the signing statement is the basis of my argument, and Kent doesn't even mention that, why does his argument "outclass" mine?]
11.2.2007 3:20pm
American Psikhushka (mail) (www):
What's the name of the most recent anti-torture law? Can someone please provide a link?

The reason I ask is I want to see if it prohibits mock executions, since waterboarding can probably be considered a form of mock execution. As it is similar to holding a gun to someone's head:

If the interrogator had put a round in the chamber the prisoner would be dead...

= equals =

If the interrogator had held the prisoner underwater for a short time longer they would also be dead...

We're talking about very similar levels of psychological duress, with the additional factor that waterboarding also puts the subject under heavy physical duress at the same time. So if mock executions are banned I think there are very strong arguments that waterboarding is banned as well.
11.2.2007 3:21pm
Dave N (mail):
cboldt,

My apologies. You are right. That's what one gets from trusting secondary sources instead of primary sources. I had "remembered" the vote as being 52-48 and Wikipedia seemed to confirm it. Thank you for the correction.
11.2.2007 3:25pm
Anderson (mail):
The Framers themselves weren't sure of it's meaning.

Original unintent?

Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function.

*That* gibberish is supposed to outclass Prof. Kerr?

Let's see: we're talking about the AG, an officer peculiarly charged with enforcing the statutes enacted by Congress.

Thus, Congress not only has the right, it has an extremely practical motive, to seek from the nominee a sample of his interpretive powers, since he will enforce the laws according to his interpretation of them.
11.2.2007 3:25pm
cboldt (mail):
I hadn't checked a primary source either ... until your post had me questioning my own prediction. At any rate, transposition is one of my favorite errors, as in "VIOLA! as if by magic."
.
Another old favorite is Charlie Brown asking if there are one or two "G"'s in "goggles." Mrs. Brown answers "Two," to which Charlie writes "ggogles."
11.2.2007 3:29pm
Anderson (mail):
Leahy: no go on Mukasey.
11.2.2007 3:30pm
Evelyn M. Blaine (mail):
I find myself in agreement with much of AnonLawStudent's last post, although I disagree with the function his claim is supposed to play in his larger argument.

In fact, the "advice and consent" requirement was itself a compromise which, like many others, was left intentionally hazy. [ ... ] Again, the interpretation of the less than clear language is based largely on tradition.

The constitutional text itself provides, I think, no information about what standards for "advice and consent" are to be used. A (fairly consistent, but by no means exception-free) tradition has developed that reads this language as quite deferential in the case of executive branch nominees, less so in the case of judicial nominees, and not at all in the case of treaties. But this tradition is just that--a tradition, not a constitutional requirement. (As Mark Field points out, anchoring the tradition in the case of treaties on the "two-thirds" language is just misreading the plain grammar.)

I personally think that this is a very unfortunate tradition, which Congress should do its best to weaken. (I do not mean merely this Congress, although I have no qualms with the process beginning there. My belief that the bloated, power-accreting, antiparliamentary institution that is the post-Truman Presidency needs to be kneecapped applies to both Republicans and Democrats and is entirely independent from my opposition to this particular President.)
11.2.2007 3:30pm
Jamesaust (mail):
"If the Democrats want to establish a litmus test for the attorney general, they are free to do so. I'll have no sympathy if it comes back to haunt them later."

Litmus test? Like demanding an AG nominee provide clear and straightforward answers and back them up with actual legal arguments? (Something this Administration has avoided like a vampire avoiding sunlight.)

Oh, my! I have the vapors!

That's almost as absurd as the Roman litmus test tossed up for Caligula: 'but Emperor, your nominees to the Senate must be human not horses!'
11.2.2007 3:34pm
Smokey:
Guest101:
...Mukasey can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
Yep. But the Democrats are objecting to Mukasey for *ahem* the 'good of the country.' heh.

There are also several comments in the following vein:
...mind you, waterboarding is torture, no question about it.
Well, now. Some folks have an opinion about a totally harmless technique, which provides info and undoubtedly saves American lives in the process. But saner folks have less whacked-out priorities. American lives are much more important than someone's feelings about harmless waterboarding of recalcitrant bomb throwers.

So much for that ridiculous "no question about it."
11.2.2007 3:34pm
ejo:
the japanese example was forcing a hose down the throat and stomping on the prisoner's belly-something different than even the wildest lefties allege here. I guess you'll have to define waterboarding now-given that you shrink from defining torture or, worse yet, define it in such a way that ratcheting the cuffs too tightly fits your definition, I won't hold my breath.
11.2.2007 3:35pm
Unintended Consequences:
Smokey,

So, since you assert that my statement that waterboarding is torture is ridiculous, you will be more than willing to undergo that procedure?

I think a lot of people will decline, and rightfully so.
11.2.2007 3:44pm
Richard Gould-Saltman (mail):
I'll agree with Orin, and add my own slant GWB's pitch here, as in the press conference earlier this week on Congressional "delay" on S-CHIP and war funding, is now deep into petulance and whining, as opposed to any actual argument...

r gould-saltman
11.2.2007 3:44pm
Adam J:
AnonLawStudent- if the founders intended to limit the authority of the legislature to grant consent, they probably would mentioned it in the Constitution. All your obfuscation of original intent is unnecessary, the words could not be clearer. Advice and Consent means just what it says, the Executive must seek consent from the Senate for appointments, whom can grant or withhold it! There is not a single qualifier on how they can grant or withhold it- they simply can. If they do it for purely political reasons, the electorate can hold them accountable, but substantively there's nothing wrong with it. You seem to think the clause didn't really mean that they can withhold consent to check the executive. Your argument is completely specious, simply because original intent is unclear (as it always is), you seem to think we should ignore a plain reading and that the Senate should therefore defer to the Executive- a perverse result since the clause is clearly intent to check the Executive.
11.2.2007 3:49pm
e:
Military trainers do not cross certain lines like dismemberment, fingernail extraction, and substantial risk of hypothermia. They are allowed certain physical contact, limited by time and intensity. They waterboard our own citizens. Does this inform our view of what is torture?

Training of volunteers should certainly not be determinative, but I think it is useful to maintain some definitional limits for torture, such that I don't again have to read comments here about "mild" torture. If something is otherwise degrading or inhuman per our treaty obligations, lets check the morality of our actions, but not merge the definitions.

We have clearly abused/killed prisoners, but our "enemies" do not really think we will systematically maim or kill captives. As it should be. But in this respect there is little difference in uncertainty between military trainee's undergoing harsh treatment, and prisoners. My instinct is that a practice which causes fear for a matter of seconds is not torture by itself, but would be if repeated over time (e.g. a sadistic daily routine for months). Some variations might also carry a risk of death or injury, becoming either torture or another category of forbidden treatment.

Perhaps we also shouldn't engage in any of the psychological interrogation techniques because they are immoral and against treaty obligations which should restrain us from causing humiliation and mental suffering. Perhaps it lessens us as a people, perhaps we should worry about cultural thin skins as well, but that need not be about the tortured definition of torture.
11.2.2007 4:00pm
Adam J:
Smokey- please provide authority for A) [waterboarding] totally harmless technique and b) [waterboarding] undoubtedly saves American lives.

I was under the impression that waterboarding caused substantial harm &that the results of these interrogation techniques were totally unreliable. Prove me wrong though and I might change my tune. You can tell me that waterboarding is the greatest thing since sliced bread- that doesn't make it so, I want to see the evidence.
11.2.2007 4:01pm
American Psikhushka (mail) (www):
The reason I ask is I want to see if it prohibits mock executions, since waterboarding can probably be considered a form of mock execution.

Answering my own post again...

Apparently the Army manual on interrogation techniques is now classified, at least in part. The old one seems to have been taken down from the Army website. Does anyone know whether mock executions were allowed under the old manual?
11.2.2007 4:03pm
AnonLawStudent:
Adam J.

Substantively, their is nothing wrong with many extreme actions by any one branch of the government. The Executive disagrees with the Judiciary? "John Marshall has made his decision, now let him enforce it!" The Constitution has a lot of hazy language, and its orderly operation depends on all of the little children playing nice together.

I haven't researched the historical usage of "advice and consent," although I understand that there is some with reference to the Crown and Parliament. Maybe it is abundantly clear, and maybe that abundant clarity isn't the practice we follow today. I don't know. But given the Framer's own apparent [intentional?] lack of clarity in the "plain reading," I would hedge against your interpretation. I would also point out that there is no constitutional requirement that the President delegate power to any agent; that he chooses to do so does not give the Senate the power to require the President to accept agents who disagree with him.
11.2.2007 4:09pm
American Psikhushka (mail) (www):
Smokey-

Some folks have an opinion about a totally harmless technique...

Whether or not it is harmless, or damaging, or deadly can be a matter of seconds, which is why it is equivalent to a mock execution.
11.2.2007 4:10pm
samuil (mail):
Obviously, Anton and Psichushka did not spend so much time in the USSR.
Or, is the love for the overriding powerful executive comes with the inherited genes of history ?

All the whining by Bush about not having an AG confirmed doesn’t make any sense to me. Is the DoJ such a top-down organization that it’s like one of the “rykors” in Edgar Rice Burroughs’ The Chessmen of Mars and needs a “kaldane”—i.e. big walking brain—sitting on its shoulders to get anything done? Is the DoJ just sitting there paralyzed into ineffectiveness, allowing white-collar crime (by Democrats, I mean…) to run rampant? Because if it is, then we need to rethink our whole system of government.
11.2.2007 4:18pm
Evelyn M. Blaine (mail):
AnonLawStudent wrote:


I haven't researched the historical usage of "advice and consent," although I understand that there is some with reference to the Crown and Parliament. Maybe it is abundantly clear, and maybe that abundant clarity isn't the practice we follow today. I don't know. But given the Framer's own apparent [intentional?] lack of clarity in the "plain reading," I would hedge against your interpretation. I would also point out that there is no constitutional requirement that the President delegate power to any agent; that he chooses to do so does not give the Senate the power to require the President to accept agents who disagree with him.


The standard form of enacting clauses in legislation in Great Britain, at the time of the Founding and long before, was "be it enacted and declared by the King's most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same" or some minor variation thereof. See, e.g., Act of Settlement, 12 &13 Will. 3, c. 2. I'm not sure exactly when the use of this exact form began, although it was set by the time of the Tudors. See Stubbs' discussion of earlier forms in Constitutional History of England, 5th edn., III:480-483.

Needless to say, this history hardly supports the reading that "advice and consent" is intended to be deferential.
11.2.2007 4:23pm
e:
American P - I think you misunderstand the type of waterboarding at issue here. From what I've read it is not a matter of someone with a stopwatch ensuring safety by limiting the time. Instead there is no risk of drowning. I've also seen no indication that interrogators have suffocated prisoners to the point of passing out, or used waterboarding as a repeated punishment in a prisoner's schedule.

I do think you raise an interesting point of mock execution. In military training, the technique definitely simulated major punishment. There is also greater uncertainty in prisoners, but I've seen no signs of systematic death threats, and our enemies still apparently prefer being in our custody to that of other nations. Maybe we're in a race to softness, which is commendable on at least some level.
11.2.2007 4:25pm
Anderson (mail):
Needless to say, this history hardly supports the reading that "advice and consent" is intended to be deferential.

Indeed. Thanks for the quote!
11.2.2007 4:28pm
Mark Field (mail):

You seem awfully certain about the meaning of "advice and consent."


Actually, I gave you the most favorable possible source: Hamilton. If anyone supported your view at the Founding, it would have been him. That he manifestly didn't makes it pretty clear that you can't justify the "strong" unitary executive by any form of originalism.

As Evelyn pointed out, you have a somewhat better case based on tradition, but even that isn't very helpful. Let's face it, Congress has a pretty substantial interest in the AG position, because the AG is charged with enforcing the laws Congress has passed. It hardly seems out of bounds for Congress to ask about that in the confirmation hearing.
11.2.2007 4:32pm
wm13:
I had forgotten about the Ashcroft nomination, mentioned above. Here's a guy with degrees from Yale and Chicago, a former governor and senator, and the overwhelming majority of Democrats in 2000 did not consider him qualified to be Attorney General. Can someone remind me again how Bush has been divisive?
11.2.2007 4:33pm
PC:
I guess you'll have to define waterboarding now


Fair enough:

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning.


There's a definition of American style waterboarding from a former SERE instructor. He also says that waterboarding is torture. Any questions?
11.2.2007 4:33pm
Bob from Ohio (mail):
Leahy saying no is a dog bites man story. He was never, never going to vote yes.

Schumer will with many a sigh and 50,000 words, vote yes in committee. Mukasey is part of the NY estblishment as is Schumer. Schumer won't break ranks with a NY establishment figure. (See Schumer's position on proposed hedge fund taxes for an example.) Especially one he sorta endorsed.

Out of committee, Mukasey gets confirmed. Who cares by how little. (Not that I care at all, no lame duck AG can do much.)
11.2.2007 4:37pm
Evelyn M. Blaine (mail):
AnonLawStudent wrote:


I would also point out that there is no constitutional requirement that the President delegate power to any agent; that he chooses to do so does not give the Senate the power to require the President to accept agents who disagree with him.


This, I think, is simply false. "[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [ ... ] all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law" is mandatory language, and presupposes that Congress has the authority to establish executive "Officers" distinct from the President. (Note also the reference to "the principal Officer in each of the executive Departments" in the preceding clause.) The President is under no obligation whatsoever to nominate candidates whom he thinks the Senate will approve of, but he cannot simply choose to forego the process of appointing subordinate officials and exercise their powers himself.

The claim is sometimes made that the vesting clause means that the President must be able to perform personally, if he wishes, anything that his subordinates can perform. But the inference is clearly fallacious.

Consider the post-1688 English Constitution: on an orthodox understanding, the Sovereign possessed all "the executive power" of the realm; but even the highest of high Tories admitted that the King could only act through acts passed under the seals of office, and that the seals could be affixed only by his ministers. See, for indications that this was understood to be true even earlier, the Prohibitions del Roy, 12 Co. Rep. 63.

This is an example of why people who speak of the "unitary executive" should be specific about what they mean. The weak claim, that the high officers of the executive branch hold office at the President's pleasure, is admitted by almost everyone. Stronger claims such as the one that AnonLawStudent makes here are much less plausible.
11.2.2007 4:38pm
Temp Guest (mail):
Bush's argument is no weaker or stronger than the arguments of those Senators who are preventing Mukasey from receiving an up or down vote in the Senate. The Senate as a body has the Constitutional right and obligation to "advise and consent". The Senate also has the Constitutional right and obligation to establish its own rules and procedures. The current facts are (1) that the rules and procedures of the Senate were originally devised for a deliberative legislative body,not an elected one whose members are now far more transient than the representatives working on the other side of Congress; (2) that the rules are maintained as if the myth of the deliberative nature of the Senate were still fact; (3) partisans have used these rules to highjack the "advise and consent" role of the Senate; and (4) if it came to an up-or-down vote on the Senate floor, as it should, Mukasey would win by an estimated 70 to 30 margin.
11.2.2007 4:38pm
AnonLawStudent:
Evenlyn - Thanks for the historical reference.

Evelyn and Anderson - Before you get carried away with what is "deferential" and what is not... I would point out that English statutes (cf. ordinances) were often only nominally approved by Parliament until the affirmation of the English Bill of Rights in 1689 - well after the beginning of the Tudor dynasty in 1485. Compare William A. Stubbs, 2 The Constitutional History of England 392 (1874-1878) (noting that in 1343, parliament reluctantly affirmed a repeal of various statutes by King Edward “to avoid acknowledging that the royal revocation had really invalidated them”) with English Bill of Rights, 1689, 1 W. &M. sess. 2 c. 2 (Eng.) (“the prentended power of dispensing with laws or the execution of laws by regal authority . . . is illegal”).

I again emphasize the lack of clarity as used by the Framers. I would also point out that a nomination by the President is inconsistent with a plain reading of the historical context cited by Evelyn - unless one considers the adoption (and repeal) of statutes by Parliament to be the perfunctory action that it often was.
11.2.2007 4:41pm
Evelyn M. Blaine (mail):
Mark Field:

I'm afraid that you misread my post. The use of "advice and consent" in the enacting clauses of British legislation tells against AnonLawStudent's position, not for it.

When the King makes law "by and with the advice and consent of Parliament", not only does Parlaiment not defer to his wishes, but he defers to theirs.
11.2.2007 4:42pm
Adam J:
AnonLawStudent- Wow, so basically your reply to it being clear is maybe it isn't clear? I'm not even interpreting anything! Apparently you think that because some parts of the Constitution are unclear we shouldn't attach the clear meaning to the parts that are clear. Consent means consent- congress has to consent in order for certain officers to be appointed. Lemme guess, next you want to argue that Congress doesn't really have the authority to declare war because some parts of the constitution are unclear!

And yet another brilliant observation- "I would also point out that there is no constitutional requirement that the President delegate power to any agent; that he chooses to do so does not give the Senate the power to require the President to accept agents who disagree with him." I think it's pretty clear that Congress can pass a law requiring the President to delegate authority, it's in the appointment clause that the legislature can establish appointments by law (or did you not read that far in the clause). Also, they probably didn't need to spell it out because one person can't really execute all the laws of a country on his own- every nation in the history of civilization has had leaders that delegate power.
11.2.2007 4:44pm
Anderson (mail):
would point out that English statutes (cf. ordinances) were often only nominally approved by Parliament until the affirmation of the English Bill of Rights in 1689

Give it *up*, dude.

Leahy saying no is a dog bites man story. He was never, never going to vote yes.

You have more confidence in the Democratic leadership than I do, then.

Feingold in particular, who used to posture as the Democrat With Principles, is nauseating me as I type.
11.2.2007 4:45pm
AnonLawStudent:
Anderson,

How about engaging with a little research rather than a "Yeah, what she said... Give it *up* dude." Man in the arena and all, you know.
11.2.2007 4:49pm
Adam J:
AnonLawStudent- no research is necessary- what power parliment had before 1689 has absolutely no persuasive value whatsoever.
11.2.2007 4:51pm
Mark Field (mail):

I'm afraid that you misread my post. The use of "advice and consent" in the enacting clauses of British legislation tells against AnonLawStudent's position, not for it.


I think we're in agreement. I was not referring to the passage about British practice, but to this language from your earlier post:

"A (fairly consistent, but by no means exception-free) tradition has developed that reads this language as quite deferential in the case of executive branch nominees, less so in the case of judicial nominees, and not at all in the case of treaties. But this tradition is just that--a tradition, not a constitutional requirement."

In failing to clarify which post I referenced, I may have confused the issue, but I'm fairly sure I didn't misread you.
11.2.2007 4:52pm
PatHMV (mail) (www):
The clarification is helpful, Orin, thank you. But I still disagree with your conclusion.

"Torture" is illegal under current law. As Attorney General, Mukasey will be in charge of prosecuting violations of the law, including any conspirators in breaking the law. If he says, under oath, that he considers waterboarding to be "torture," then he will have little choice but to commence prosecutions of CIA and other personnel who have conducted waterboarding, as well as any Justice Department employees who assisted, and any individual in the chain of command who authorized or ordered the waterboarding. The Democrats demand is that the President's nominee for Attorney General directly accuse the President and the Vice President and who knows how many CIA and other employees of breaking the law, as a condition of confirmation. I don't think that's a realistic or an appropriate demand. If they believe that waterboarding is torture and in violation of the laws passed by Congress, then they can begin impeachment proceedings. But they don't want to do that. Once again, they are trying to avoid political consequences and get someone else to be the "bad guy" in an investigation.
11.2.2007 4:53pm
Evelyn M. Blaine (mail):
AnonLawStudent:


Before you get carried away with what is "deferential" and what is not... I would point out that English statutes (cf. ordinances) were often only nominally approved by Parliament until the affirmation of the English Bill of Rights in 1689 - well after the beginning of the Tudor dynasty in 1485. Compare William A. Stubbs, 2 The Constitutional History of England 392 (1874-1878) (noting that in 1343, parliament reluctantly affirmed a repeal of various statutes by King Edward "to avoid acknowledging that the royal revocation had really invalidated them") with English Bill of Rights, 1689, 1 W. &M. sess. 2 c. 2 (Eng.) (“the prentended power of dispensing with laws or the execution of laws by regal authority . . . is illegal”).


Depending on what you mean by "nominally", this is either irrelevant or a misreading of English history. It is true that, before the seventeenth century and even later, the King had a lot of effective control over the Houses of Parliament. But, as a matter of law, it was never claimed that Parliament were bound to assent to anything that the King proposed, nor was it believed (at least not after Edward I or so) that the difference between a statute and an ordinance was insignificant. If it had been, there would have been no reason to for the most autocratic of Tudor monarchs to get the Statute of Proclamations, 21 Hen. VIII, c. 20 (which Maitland termed the most extraordinary thing ever put into the statute book) enacted. (It was repealed in 1547.) The issue of the dispensing power (which the Bill of Rights addresses) is a separate one.

In any case, it is the post-1688 understanding of the British constitution which matters for the Framers; it was clear that, at that point, "advice and consent" could not be interpreted to connote any necessary deference on the part of those doing the advising and consenting.
11.2.2007 4:56pm
Anderson (mail):
Anon, you repeatedly produce things that you think are persuasive, but aren't.

I would point out that English statutes (cf. ordinances) were often only nominally approved by Parliament until the affirmation of the English Bill of Rights in 1689 - well after the beginning of the Tudor dynasty in 1485.

What does this get you?

Compare William A. Stubbs, 2 The Constitutional History of England 392 (1874-1878) (noting that in 1343, parliament reluctantly affirmed a repeal of various statutes by King Edward “to avoid acknowledging that the royal revocation had really invalidated them”)

Uh, yeah. That's 1343. The English constitution was a work in process.

with English Bill of Rights, 1689, 1 W. &M. sess. 2 c. 2 (Eng.) (“the prentended power of dispensing with laws or the execution of laws by regal authority . . . is illegal”).

So, which one of these are you suggesting the Framers looked to -- the practices of Plantagenet-era Parliaments, or the precedent of their own revolutionary ancestors a mere century earlier?

Or, more concisely: give it *up*, dude.
11.2.2007 4:56pm
Anderson (mail):
The Democrats demand is that the President's nominee for Attorney General directly accuse the President and the Vice President and who knows how many CIA and other employees of breaking the law, as a condition of confirmation.

Well, if they *were* breaking the law, then what's the problem?

Besides which, you overstate. As we've been reminded, Mukasey doesn't know what exactly has been done. He's free to say, as my quote from Hilzoy upthread suggested, "if by waterboarding you mean ____, then I think it does/doesn't violate statutes X, Y, and Z."

Regardless, the MCA bestowed immunity left &right, so that it's unfortunately very, very difficult to imagine that Bush, Cheney et al. could actually be prosecuted. I trust they'll avoid Western nations that still uphold the rule of law.
11.2.2007 5:00pm
jrose:
PatHMV,

Good points in your 3:53 post. However, given the signing statements that Orin rightly points out prevents Congress from knowing what torture is, and given that removal after impeachment requires a super-majority, I think it is reasonable for Congress to use the confirmation process to force the President's hand when he steals power from the Congress.
11.2.2007 5:01pm
AnonLawStudent:
Evelyn &Adam J.,

I would not consider a centuries-long tradition of ritualistic recitation to be irrelevant in discerning the meaning. When said recitation was for most of history purely perfunctory, and made by Parliaments that in reality had little or no actual power, but were merely attempting to maintain a legal facade (i.e. the power to approve or reject was a technicality), I would consider that to have clear importance with respect to the Framer's understanding of the recitation. By your understanding, the recitation of "So help me God" by the President, his hand on the Bible, should be interpreted centuries hence as indicating those men actually thought that God would strike them down if they lied.
11.2.2007 5:09pm
Andrew J. Lazarus (mail):
AnonLawStudent's arguments about the omnipotent executive reinforce my belief that the Bush Remnant consists largely of arrested-development boys who don't realize the 007 Licence to Kill is make-believe.

Would the President be justified in reconstituting Auschwitz on American soil if in his view (unchecked by Courts and Congress) it was necessary?
11.2.2007 5:09pm
Anderson (mail):
By your understanding, the recitation of "So help me God" by the President, his hand on the Bible, should be interpreted centuries hence as indicating those men actually thought that God would strike them down if they lied.

If only.
11.2.2007 5:11pm
Adam J:
AnonLawStudent- do you really believe your argument? I mean seriously... so instead of focusing on the England's reforms... what everyone agrees was the basis for modern democracy, we should focus on the autocratic rule before said reforms.
11.2.2007 5:14pm
AnonLawStudent:
Anderson,

If you read Evelyn's post carefully, you would note that she said the "advice and consent" recitation was "set by the time of the Tudors," i.e. by 1485. My argument is that the recitation should be viewed as somewhat perfunctory in light of the fact that 1485 is closer to 1343, and the understanding of Parliamentary power then, than the understanding of that Parliamentary power in 1689 (after a civil war, I might add). If the Framers did view that term in its historical context, it infers a highly deferential review of nominations. Again, may I suggest that you engage in a debate regarding historical meaning via citations to the record, instead of "Yeah, what she said."
11.2.2007 5:19pm
AnonLawStudent:
Adam J.,

I think that the Framer's understanding should be viewed in light of the totality of English history, and Western civilization for that matter.

Mr. Lazarus, may I suggest that you review my 1:40PM post for the names of other, more established, men who share my belief that some powers are fully entrusted to the President. I guess they, too, are (were) "arrested-development boys who don't realize the 007 Licence to Kill is make-believe"
11.2.2007 5:25pm
Evelyn M. Blaine (mail):
1) It is not generally true that, pre-1688, Parliament had "little or no power". There were periods during which that was the case, but there were also periods during which Parliament had great power and used it (Edward II? the time of the Ordinancers under Richard II? the Regency during Henry VI's infancy?).

2) In any case, it is undoubtedly the case that, after 1688, Parliament felt itself under no legal or moral obligation to defer to the Crown's wishes in passing judgment on legislation. It would be anachronistic to posit something like modern cabinet government before the late 18th century, and read the modern meaning of "advice" in the British constitution back into 1688, but it is nonetheless absolutely true that, however much de facto influence William III, Anne, or the Hanoverians may personally have had, Parliament after 1688 felt itself legally and morally absolutely free to reject any proposition made to it by the Crown for any reason.

Insofar as English practice is relevant, it's (2), not (1), that matters. (In general, I think post-1688 English practice is very relevant, but for the construction of those particular words I don't think it has that much importance. My original point was just a rebuttal: if one's inclined to put weight on English practice, it tells against ALS's claim, not for it.)

By the way, Mark Field, my apologies: I was mistaken as to which of my posts you were referring to.
11.2.2007 5:26pm
Anderson (mail):
I think that the Framer's understanding should be viewed in light of the totality of English history, and Western civilization for that matter.

Well, *that* would certainly make for more entertaining Supreme Court opinions.
11.2.2007 5:27pm
SteveIL (mail) (www):
Mark Field said:

So, in your view, if Congress passed a law saying that the rack and the wheel are not torture, you think the courts would uphold that?

I think my view is quite realistic. There is a question on whether or not it is torture. Defining it as such clarifies the situation, don't you think? And remember, we're talking about what to do with non-American unlawful enemy combatants being held overseas, not anybody held in the United States, or anybody covered by the Geneva conventions.
11.2.2007 5:29pm
Evelyn M. Blaine (mail):
As a general methodological point: it is simply inconceivable to me that one could imagine that the Framers, in using a familar term from English practice, were invoking the meaning that the more extreme pre-1642 royalists (incidentally, the claim that "advice and consent" is trivial is straight out of Filmer) might have given to it, rather than the meaning that post-1688 Whigs gave to it.

Virtually every work of political theory or law that informed the Founding was, broadly conceived, a work either written against pre-1642 royalist ideology or its resurgences, or written against a post-1688 background ideology of Whiggism: Locke, Harrington, Cato's Letters, Blackstone, and so on.
11.2.2007 5:35pm
AnonLawStudent:
Anderson,

SCOTUS cites to historical examples when it wants to, e.g. Bowers; Lawrence. It's unfortunate that the Court also excuses itself from referencing that understanding in other cases, e.g. Kramer v Union Free School District.
11.2.2007 5:36pm
Evelyn M. Blaine (mail):
My use of two senses of "against" may have made the last sentence of my last post less than clear. What I meant to say was that every major work that mattered for the Framers was either (a) a seventeenth-century text written in opposition to royalist ideology (Sidney, Harrington, Locke, etc.) or (b) an eighteenth-century text presupposing Whiggism, broadly conceived, and the vindication of the anti-Crown party in the preceding century (Cato's Letters, etc.).
11.2.2007 5:39pm
Anderson (mail):
incidentally, the claim that "advice and consent" is trivial is straight out of Filmer

It just gets better and better.
11.2.2007 5:44pm
Drake (mail) (www):
Good stuff, but this:
I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.
leaves me wondering just how much study you'd think one would have to do. There are many hard questions in this field, but I wouldn't have counted "Is waterboarding torture?" among them.
11.2.2007 5:47pm
Guest101:
Deveoping Story banner on CNN.com: "Two Democrats say they will vote for Bush's attorney general pick, virtually ensuring the nomination will move to the full Senate." No full story yet.
11.2.2007 5:48pm
Mark Field (mail):

I think my view is quite realistic. There is a question on whether or not it is torture. Defining it as such clarifies the situation, don't you think? And remember, we're talking about what to do with non-American unlawful enemy combatants being held overseas, not anybody held in the United States, or anybody covered by the Geneva conventions.


1. You didn't answer my question.

2. No, there is no "question" regarding waterboarding. It's pretty much a classic example of torture, in the same way as the rack or the wheel. Several posts here have provided links to this effect.

3. If waterboarding is NOT torture, then what rule of American law do you think would prevent its application to those held in the US? And why do you think Congress has the power to define such law?
11.2.2007 5:50pm
Anderson (mail):
Two Democrats say they will vote for Bush's attorney general pick

Schumer &Feinstein, says TPM. Here's hoping they get afterlife seating next to Lieberman.
11.2.2007 5:52pm
PLR:
Similar to PatHMV's comment at 3:53, Jack Balkin weighs in on Mukasey's plight:
The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just “a dunk in the water” in Vice President Cheney’s terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

That would reflect credit on Mukasey for responsiveness (not to mention factual accuracy). Whether it would improve his chances to become the nation's AG is a different matter.

If the Democrats and Senator Graham round up enough votes to kill the Mukasey nomination, then what? So long as the House seems to lack testicular fortitude for impeachment, are we looking at a future full of recess appointments of known sociopaths and toadies?
11.2.2007 5:56pm
Anderson (mail):
are we looking at a future full of recess appointments of known sociopaths and toadies?

That was a rhetorical question, right?

(And, to preempt my Republican friends, I can't resist: "Not until 2009!")
11.2.2007 6:00pm
Smokey:
Whether or not it is harmless, or damaging, or deadly can be a matter of seconds, which is why it is equivalent to a mock execution.
Waterboarding has now morphed from an interrogation technique into a 'mock' execution?? Who started that meme?

Be that as it may, what is the problem with a mock execution?? This is war. American lives are at stake. Any technique that causes no harm, and is very temporary, must be used whenever and wherever it saves American lives. And no one here is the judge of whether lives are saved by waterboarding; this is the peanut gallery. Those who know are in Iraq.

This is anyway partisan politics at the expense of our soldiers. Is there any doubt that if the once and maybe future President Clinton authorized its use, the grumbling about waterboarding would simmer down to background noise?

I'm willing to rethink my position if - and only if - it is shown that someone has been killed, or even injured by the technique [claims from insurgents through their lawyers are unacceptable, of course. Arab insurgents are not notable for their honesty]. Otherwise, I care not a whit about a few of the enemy being made uncomfortable for a short time before they begin to eagarly spill the beans, and snitch on their comrades; it took KSM only 2 1/2 minutes until he was singing like a canary - and providing extremely valuable tactical information to his interrogators.

If some folks just don't seem to care as much about our soldiers than they do about al-Qaida, fine. This is a free country [thanks to our military]. People can think what they want. But why don't we ask our soldiers in Iraq what they think?
11.2.2007 6:05pm
PLR:
I am curious to know what kind of price Smokey is getting from his dealer. Quality stuff.
11.2.2007 6:14pm
Smokey:
I am curious to know what kind of price Smokey is getting from his dealer. Quality stuff.
And I am wondering what passes for intelligent thought there.

Any clues?
11.2.2007 6:20pm
SomeFella (mail):
@Smokey

So let's say we use the new device that produces electromagnetic waves that resonate at the wave length our nerve endings use to signal pain to our brain. It is completely harmless so far as we know, but produces a sensation like that of having the targeted body part trapped in an oven. Even hardened Navy SEALs cannot stand it for more than a few seconds. We could turn it on the detainees faces and leave them for a minute or until they squeal. They'll feel like their flesh is melting from their bones, but it won't really cause any long lasting harm (that we know of).

The thought of that procedure makes my skin crawl. While I respect the need to gain information and condone interrogation techniques used by most law enforcement, something like this- or any form of torture, water boarding being one form- is unconscionable. While our Constitution is not a suicide pact, there are certain limits to what should be done in defense of our nation against non-existential threats. The use of torture is one such limit.

I don't care what the other side does, not one bit. That someone else dehumanizes their enemies and routinely tortures and kills their captives does not mean we should do likewise. Sorry this is rather unorganized I'm trying to type this up and do some work for Monday.
11.2.2007 6:26pm
Cold Warrior:
Consider this:

Congress could certainly pass a law which would provide that waterboarding is torture and forbid it


Could it? A lot of us disagree with the President's interpretation of the scope of his Commander in Chief powers. But it is a serious argument, not something to be brushed aside with a wave of one's hand. Let's go back to the Vietnam days. Let's say Congress is controlled by pacifists. And that pacifist majority (a veto-proof supermajority, just to make it easy) passes a law that says the following:

"The Government of the United States expresses its commitment to the principles of pacifism. Under no circumstances shall the United States armed forces or any instrumentality of the United States take any person as a prisoner of war or interrogate any enemy soldier or combatant."

Would this be constitutionally permissible? Is it not an infringement on the President's Commander in Chief powers?

So if you grant me that, then exactly how far may Congress go to rein-in the President? May it prohibit the taking of prisoners of war? May it eliminate interrogation of enemy forces entirely? May it place restrictions on such interrogations? What if Congress said this:

"Enemy forces may be interrogated regarding their knowledge of enemy strategies and tactics, but at every such interrogation they shall have the right to remain silent and the right to be represented by counsel at the interrogation."

OK, so these are not realistic (in today's world; you'd be amazed what was "realistic" c. 1971) examples. But surely there is something to this Commander in Chief powers argument.

And it is time that we had a good, honest, fair debate over these issues. That's why Mukasey should tell us how he'd analyze the issue. He needn't take the Congressional bait ("Is waterboarding, as defined by me to be the subjecting of prisoners to near drowning, causing a serious risk of death or permanent injury, an allowed practice?"), but he should at least give us some insight into the real issues:

1. Can the President use his Commander in Chief powers to authorize torture or extreme forms of interrogation?

2. If so, are those powers constrained by our treaty obligations? Is a prior President's signing (and the Senate's ratification) of the U.N. Convention Against Torture binding on executive actions in time/place of war?

3. Does Congress have the authority to outlaw particular interrogation techniques? If so, what are the limits, if any, of that power? May Congress outlaw interrogation entirely? Or subject interrogations in a theater of war to 4th/5th/6th Amendment restrictions that apply in domestic criminal investigations?

So these are real questions demanding real thought and real answers. The process is "unfair" only in that members of Congress are trying to play "gotcha" with Mukasey over waterboarding, and only in that Mukasey is using that as an excuse to avoid answering any questions about the serious constitutional (and policy) issues here.
11.2.2007 6:28pm
Adam J:
AnonLawStudent- You do realize that the probable reason Parliment's power was "nominal" was because the King could off with their heads if they withheld consent- not because they didn't legally have power to withhold consent. Anyways, I don't see any point engaging your argument that "all of history should be considered", since you apparently ignore the context of history... that is that the Founders sought to avoid monarchy. It's impossible that Founders meant the "nominal consent" that occurred when Monarchy was at the peak of its power rather then the plain meaning of consent. The Founders wanted to avoid Monarchy... I guess I did engage your argument.
11.2.2007 6:28pm
OrinKerr:
Drake,

I'll happily extend the same offer to you that I made to Scote above.

Orin
11.2.2007 6:31pm
Kelvin McCabe:
Those two Dem Senators are CHuck Schumer and Diane Feinstein.... they will vote to allow it out of committee likely sealing the deal. I believe their argument is...its better than a recess apointment or the current guy.

See TPM muckracker for details and statements...

http://www.tpmmuckraker.com/archives/004635.php

(sorry not good at linking)
11.2.2007 6:53pm
AnonLawStudent:
Adam J.,

Quite the opposite, I believe that the full context of history should be considered - I am very much a proponent of original understanding. I believe that original understanding should be viewed as a bell curve, with a core range of understandings within which a given text was understood at the time of passage. What I do disagree with, however, is limiting the analysis to one tail of that curve, which is what you are attempting to do.

My citation to Stubbs at 3:41PM (noting that in 1343, parliament reluctantly affirmed a repeal of various statutes by King Edward “to avoid acknowledging that the royal revocation had really invalidated them”) was to address the argument that you just made. For significant periods of time prior to 1689, Parliament was going through motions, even when in reality it had no power to disagree with the Crown, to prevent the Crown from establishing precedent. I certainly believe that the majority of the Framers were opposed to monarchy, but I also believe that they viewed legal language in reference to its full history of usage, and that 1689 was not a magical date from which their dictionaries originated. Given that the Framer's were very well read, chose that language as a compromise, and argued as to its meaning after its passage, I think it is certainly fair to say that a deferential interpretation is falls in the the heart of the bell curve. That the Officers subject to the provision are agents of the President weighs in favor of deference. If deferential review doesn't take place, all of the children in both branches can pick up their toys and go home. The absence of government at play isn't necessarily a bad thing.

That the Washington Administration had to argue for its interpretation of "advice and consent," i.e. the current practice, weighs significantly on how clear the text is.
11.2.2007 7:02pm
samuil (mail):
Here's what actual libertarians say(Cato institute) on torture:

"The American people must recognize these odious tactics for what they are and remain vigilant about our Constitution and individual liberty. Too many people seem to think that the Constitution will automatically check the government from overstepping its authority and running amok. That simply is not true. The Constitution is incapable of enforcing itself. The ultimate limit on the power of government has always been the patience of the people."
11.2.2007 7:06pm
scote (mail):

Drake,

I'll happily extend the same offer to you that I made to Scote above.

Orin


Very nice of you. Why don't we work backwards (well, actually forwards) and you can explain to us how waterboarding is not "cruel" or "unusual" in the sense meant by the framers of the constitution?
11.2.2007 7:07pm
scote (mail):
...I should add that the reasonable default position is to assume that waterboarding--the deliberate total immobilization and coercive terrorizing and suffocation of detainees to elicit confessions and information--is torture, not the other way around. It is up to the supporters, and condoners, to assert why it is not illegal under the plain language of 8th Amendment as well as the Geneva Conventions and the Convention Against Torture.
11.2.2007 7:18pm
AnonLawStudent:
Evelyn M. Blaine,

After doing a bit of googling, I was *shocked* *shocked* to find that your method of interpreting a text is influenced by its political import. See, e.g., your post on 1.25.2007 at 3:11AM:

"This is a question, I think, that is better answered by actually reading the (real) text and looking at the development of the term in the language than by doing a head-count of English versions."

Or this one at 4:02AM:

"If the semantic value of [a word] is ambiguous between the English terms [A] and [B], and the translator believes, on the balance of the evidence, that [A] is a better rendering, then he should use [A]. But the ambiguity is still something that anyone interested in the text should bear in mind. . . .

I do, btw, realize that this cuts both ways in our discussion.
11.2.2007 7:19pm
Drake (mail) (www):
Orin, to quote you, "Oh, please." I'm sure there are no perfectly on-point authorities that deal with whether, say, shoving a lawn-mower up someone's ass is "torture"; but that doesn't make it a difficult question requiring "study" in order to come to have an "educated opinion."

I cited a relevant statute. (Not that there aren't relevant provisions.) If you believe there is a nonfrivolous argument that waterboarding as practiced by agents of the U.S. is not "intended to inflict severe physical or mental pain or suffering" on prisoners, I'd invite you to educate me.
11.2.2007 7:24pm
alkali (mail):
Prof. Kerr writes:

If you have an educated opinion on the legality of waterboarding, I would ask that you post it in this thread along with your citations and counterarguments to the legal claims of those who defend the practice.

I am reminded here of the various cases in which public officials that have abused their authority in incredibly egregious ways have argued that they are entitled to qualified immunity because no court has ever had occasion to rule on whether such misdeeds are illegal. Judge Posner(*) memorably rejected such a contention with the observation, "The easiest cases don't even arise." K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); see also U.S. v. Lanier, 73 F.3d 1380, 1410 (6th Cir. 1996) (Daughtrey, J., dissenting) (quoting K.H.), rev'd, 520 U.S. 259 (1997).

The request for an "educated" opinion as to whether an ancient torture technique is similar to these contentions. The rack is torture. The Maiden is torture. Waterboarding is torture. Prolonged sleep deprivation is torture. Forced hypothermia is torture. Those are the easy cases. No one has ever puzzled over whether "torture" includes those things, because "torture" is a category that means things of that nature. Further analysis cannot be informative. If you think a particular definition of "torture" doesn't include one or more of those things, then you have not obtained a new insight into the morality of those practices -- rather, you have simply been presented with a defective definition of the word.

Judge Mukasey has acquired in the course of his lifetime a reputation for integrity and intelligence. I very much hope he does not spend it to protect the cretins and criminals of this administration. They have not earned it.

(* In quoting Judge Posner, I should take note that I understand that he is of the view that torture may be the lesser of two evils in some circumstances. I mostly disagree.)
11.2.2007 7:27pm
Drake (mail) (www):
Er, "...other relevant provisions."
11.2.2007 7:28pm
SteveIL (mail) (www):
Mark Field said:

1. You didn't answer my question.

2. No, there is no "question" regarding waterboarding. It's pretty much a classic example of torture, in the same way as the rack or the wheel. Several posts here have provided links to this effect.

For 1, the question asked of me was:

So, in your view, if Congress passed a law saying that the rack and the wheel are not torture, you think the courts would uphold that?

First off, your reversed logic doesn't pass muster. I'm not advocating for Congress to say waterboarding is not torture. It is their job to make laws, as stated in the Constitution, not the Attorney General, whose job it is to enforce those laws. As there is a debate between various members of Congress on whether or not waterboarding is torture, this does not give them license to pass the buck to a nominee for Attorney General. One other thing; none of the 3 people who have potentially been waterboarded (all before 2003) has taken a case to the courts and gotten a ruling that states waterboarding does violate the 8th Amendment.

For 2, those are opinions, not legal interpretations.

Your question 3 doesn't make sense, and in fact is wrong:

3. If waterboarding is NOT torture, then what rule of American law do you think would prevent its application to those held in the US? And why do you think Congress has the power to define such law?

I'll answer your second question first. Why do I think Congress has the power to define such law? Read Article I, Section 1 of the Constitution:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

I don't know how to answer it more clearly than that.

The first part of your question doesn't really make any sense. I'm assuming you mean due process, meaning that if someone in the U.S. was waterboarded by the government, that person has a helluva lawsuit that could be filed.
11.2.2007 7:30pm
Evelyn M. Blaine (mail):
AnonLawStudent,

I claimed, in my very first post on this subject, that the text underdetermined the construal of 'advice and consent': "[t]he constitutional text itself provides, I think, no information about what standards for 'advice and consent' are to be used." I then went on to argue that, on normative grounds, Congress should choose a much more confrontational stance than it has in the past. My view was, and remains, that neither the past tradition of deference, nor the more assertive stance I would like to see, is either necessitated or ruled out by the Constitution.

I don't see how that's incompatible with any claims I made about the interpretation of texts in general, in a comment on a different subject. (In fact, I think that on the meaning of this particular constitutial text we're quite close: we both accept that it neither mandates nor forbids deference. The difference is that you think the tradition of deference is a good one on general policy grounds, and I don't.)
11.2.2007 7:36pm
doc75 (mail):
If Mukasey is nominated, Bush should recess appoint a staunch conservative like Ted Olsen in retaliation.
11.2.2007 7:40pm
Evelyn M. Blaine (mail):
Incidentally, if memory serves, in that (rather tedious) argument in January, all I was claiming was that polling translations is not a very good way to understand what a disputed term in a text means. This applies to legal texts as much as to religious or literary ones: if someone proposed to figure out the meaning of "advice and consent" by examining how most of the German translations of the U.S. Constitution currently in print chose to render the term, my response wouldn't be any more charitable than it was in that debate.
11.2.2007 7:51pm
AnonLawStudent:
Evelyn,

My apologies for the bit of ad hominem. It is definitely a pleasure to debate with someone knowledgeable of history, rather than limited to normative talking points.
11.2.2007 8:00pm
Adam J:
AnonLawStudent- "That the Officers subject to the provision are agents of the President weighs in favor of deference."- Um... then when in the very same appointment clause is the Legislature allowed to vest the power to appoint inferior officers in "the Courts of Law, or in the Heads of Departments." If the Founders thought all executive officials were a mere "agent" of the president, why do officers require any consent at all from the Legislature, and why can inferior officers be appointed without any authority of the President.

"For significant periods of time prior to 1689, Parliament was going through motions, even when in reality it had no power to disagree with the Crown, to prevent the Crown from establishing precedent." So you admit there's no legal precedent that the Crown could ignore the consent of Parliment? I don't really see how you have an argument, other then to say at one point in time Parliment couldn't enforce it's power to withhold consent because the King had the military power to disregard the rule of law. If the Founders wanted deference to be granted, why wouldn't they say so?
11.2.2007 8:00pm
Public_Defender (mail):

"I believe that the questions he’s been asked are unfair," Mr. Bush said. "He’s not been read into the program — he has been asked to give opinions of a program or techniques of a program on which he's not been briefed."


Then brief him already.

Bush controls the information that Mukasey has. Bush shouldn't get away with intentionally keeping Mukasey ignorant and then claiming the Mukasey can't answer questions due to the Bush-imposed ignorance.
11.2.2007 8:10pm
AnonLawStudent:
Adam J.,

(1) As discussed above, the Appointments Clause is an effective check on minimal qualifications and nepotism. That the President shouldn't be tasked with having to appoint every ensign or second lieutenant doesn't mean that those ensigns and second lieutenants don't serve as HIS agents and at HIS pleasure.

(2) Reality certainly informs precedent. When a recitation is made despite inability to enforce it, that recitation can only be viewed as a ceremonial tradition lacking in power. Congress's recitation that such-and-such matter affects interstate Congress doesn't make it so, see, e.g. Lopez. Necessary, perhaps, but not sufficient. Or, that the President makes communications to Congress while reciting "in the spirit of the War Powers Resolution" doesn't serve as precedent that any President has recognized that authority of Congress. Reality intrudes, and I point you back to the bell curve, rather than that tiny bit of tail you're trying to argue.
11.2.2007 8:15pm
MarkField (mail):

I also believe that they viewed legal language in reference to its full history of usage, and that 1689 was not a magical date from which their dictionaries originated.


That, I think, is a unique view of history. The Founders were the ultimate Whigs; 1689 was indeed a magical date for most purposes. Indeed, by the mid-1700s there was nobody in England itself who would defend the claims of executive power made by the Stuarts. If you have actual historical writings to back up your assertion, I'd love to see them.


I'm not advocating for Congress to say waterboarding is not torture.


I don't see how you can avoid the problem. The power to define a term necessarily includes the power to define what it does NOT include.


As there is a debate between various members of Congress on whether or not waterboarding is torture, this does not give them license to pass the buck to a nominee for Attorney General.


That's not the way the system works. Once Congress passes a statute, such as the one it passed which bans torture, and gives a definition of the word "torture" (which it did), it's up to the courts to apply that in particular cases. It's up to the AG to bring such cases; that's his duty -- to execute the laws.


none of the 3 people who have potentially been waterboarded (all before 2003) has taken a case to the courts and gotten a ruling that states waterboarding does violate the 8th Amendment.


I don't understand your point here (leaving aside your minimalist view of the number of people who have been tortured). The relevant cases have gotten bogged down in procedural disputes precisely because the Administration is bobbing and weaving as fast as it can to avoid a court determination of these issues. In any case, I doubt the 8th A would be the source of such a claim.


Read Article I, Section 1 of the Constitution


That power has limits, specifically the due process clause. The Supreme Court has already recognized those limits:

“There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944). And see Brown v. Mississippi, 297 U.S. 278 (1936).

It's important, I guess, to note here that there's no dispute about this. The Bush Administration and Judge Mukasey agree that torture is illegal. What they're trying to do is define the law; that's up to either Congress (in general terms) or the courts (in specific cases). The Executive doesn't get to define, it only gets to execute.
11.2.2007 8:26pm
AnonLawStudent:
Mark Field,

You're awfully certain that your interpretation of (i) torture, (ii) the Executive's powers, and (iii) Congress's powers are *right*. This despite the lack of agreement on (ii) and (iii) by both the Framers (Alexander Hamilton and John Marshall on the one hand, and James Wilson on the other) and modern academics. VERY smart people, including those in the current government disagree, but Mark Field *knows*.

To point out but one example, you claim that "there is no "question" regarding waterboarding. It's pretty much a classic example of torture, in the same way as the rack or the wheel." I can distinguish the rack and the wheel off-hand: they per se damage the body via their use. Nor does the 8th Amendment necessarily apply. IIR, only one of the statutes re: torture incorporates cruel and unusual standard of the 8th Amendment. It's certainly relevant that SEER school includes waterboarding; I'm sure the plebes at Annapolis would be shocked to find out that their winter SMT dips in the Severn, i.e. enforced hypothermia, constitute torture as well. I'm going to go out on a limb here, and suggest that this high level of certainty re: what "must" be right is why SCOTE and Drake got blogslapped above.
11.2.2007 8:48pm
Adam J:
AnonLawStudent:


"The President shouldn't be tasked with having to appoint every ensign or second lieutenant doesn't mean that those ensigns and second lieutenants don't serve as HIS agents and at HIS pleasure." I absolutely agree, but if the Founders wanted a unitary executive why wouldn't they have left it to the President to deligate the appointment as he sees fit. It seems a bit illogical to desire a unitary executive and then allow executive officers to be appointed from outside of the executive branch.

Your examples seem a bit off point. The reality in this situation was that Parliment had the power to withhold consent, but did not because they desired to keep their heads attached. That does not seem like a particularly compelling source of authority, especially considering the founders actively sought to avoid that exact situation by dividing power in the Constitution.
11.2.2007 8:50pm
Bob from Ohio (mail):
3:37pm, I say


Schumer will with many a sigh and 50,000 words, vote yes in committee.


4:47 CNN breaks news that Schumer will vote yes in committee.

Maybe I am a seer.

Nah, it was never in doubt. Chuck is so predictable.
11.2.2007 8:51pm
OrinKerr:
Drake,

I certainly recognize your hostility, but could you also make the legal argument that you think is so obvious that any one who does not recognize it without first seeing it deserves your condemnation? I realize you think that the law is so clear that no analysis is needed, but the Administration's supporters have disagreed. I would like to see your response to their claims.
11.2.2007 9:01pm
AnonLawStudent:
Adam J,

My examples go a long way toward explaining your argument re: vesting appointments of subordinates in courts and department heads. You should also note that in non-flag confirmations, the Senate's advice and consent is purely proforma as well, generally reading along the lines of "A list of officers beginning with Adams and ending with Zubrowski, to the grade of lieutenant commander."

Subjective intent of the Framers is irrelevant; likewise irrelevant is the reason those words meant what they did. What the words, in context, were understood to mean at the time of adoption is everything. Understood in the context of the long and often highly deferential history of "advise and consent," a deferential reading is, at a minimum, justified, and perhaps preferred.
11.2.2007 9:01pm
Smokey:
Mark Field:
The Bush Administration and Judge Mukasey agree that torture is illegal. What they're trying to do is define the law; that's up to either Congress (in general terms) or the courts (in specific cases). The Executive doesn't get to define, it only gets to execute. [my emphasis]
Not trying to quibble, but in this instance neither the courts nor Congress has not sufficiently defined the law regarding waterboarding. If that is the case [please correct me if I'm wrong], then the Executive does, in fact, get to define while executing.

[PS- Bob, you were indeed prescient. Good call.]
11.2.2007 9:16pm
Smokey:
...neither the courts nor Congress has not sufficiently defined the law...
11.2.2007 9:18pm
Evelyn M. Blaine (mail):
AnonLawStudent,

No apologies needed, but I appreciate the compliment. I always appreciate the chance to argue with someone interested in English history -- particularly a fellow reader of Stubbs.

-Evelyn
11.2.2007 10:16pm
MarkField (mail):
AnonLawStudent, I'm sorry but I found your last post incoherent. Let me try to sort it out.

1. You say that I'm awfully sure of 3 things, namely, torture, executive power, and Congressional power. You then suggest that Hamilton, Marshall, and Wilson disagred about executive power and Congressional power. That's certainly an odd trio to pick. Those 3 shared views on most subjects; Marshall relied heavily on Hamilton's writings, for example, in M'Culloch v. Maryland. Perhaps you could clarify with some specific examples of (a) how they disagreed with each other; and (b) how they disagreed with what I've said.

2. You next say you want to give "one example", but your example is about the definition of torture, not the distribution of powers between the executive and legislative branches. Did you intend more by this example, or are you changing issues here?

3. You say the 8th A doesn't apply, but I've already suggested that it may very well not (see my response to SteveIL).

4. You then suggest one statute may incorporate the 8th A standard, contradicting your previous point. In any case, the torture statute does not incorporate that standard; neither does the Convention Against Torture. Both the Convention and the statute already define torture. If you don't think waterboarding fits those definitions, perhaps you could explain why. You'd need, of course, to account for the historical treatment of waterboarding as torture, including the fact that the US has criminally punished people for doing it.

5. You next claim that "It's certainly relevant that SEER [sic: you mean "SERE"] school includes waterboarding...", but you don't explain that relevance. It seems to me that it pretty much proves my point about waterboarding. After all, the purpose of waterboarding those who go through SERE is to prepare them to face torture. That's why they do it.

5. You next assert that "I'm sure the plebes at Annapolis would be shocked to find out that their winter SMT dips in the Severn, i.e. enforced hypothermia, constitute torture as well." I haven't mentioned hypothermia, so I'm not sure where this comes from. I think the distinctions here are pretty obvious, but if you honestly don't, I'll be happy to explain.
11.2.2007 10:22pm
MarkField (mail):

Not trying to quibble, but in this instance neither the courts nor Congress has not sufficiently defined the law regarding waterboarding. If that is the case [please correct me if I'm wrong], then the Executive does, in fact, get to define while executing.


Both the Convention Against Torture and the US torture statute (18 USC Sec. 2340) define torture. Congress need not specify in those definitions every single act which constitutes torture, any more than the ban on murder has to define the particular ways people might be murdered. That's not what statutes do. In both cases, the crime is defined by its effect on the victim. Anything which causes that effect is banned. It's up to the courts to decide, in particular cases, if that effect actually did occur.
11.2.2007 10:28pm
Drake (mail) (www):
Orin, you say, "I realize you think that the law is so clear that no analysis is needed, but the Administration's supporters have disagreed. I would like to see your response to their claims."

Yes, it's true: I really do believe no legal analysis should be necessary. Waterboarding is so paradigmatic a form of torture that asking whether it is "torture" is akin to asking whether intentionally shooting someone in the head is "murder." That no court has weighed in on the matter should be considered instructive rather than confounding. See alkali's comment, supra.

Nonetheless, I will give the legal response you request, but only as to those claims of the administration you certify as colorable.
11.2.2007 10:35pm
CDU (mail):
really do believe no legal analysis should be necessary. Waterboarding is so paradigmatic a form of torture that asking whether it is "torture" is akin to asking whether intentionally shooting someone in the head is "murder."


Intentionally shooting someone in they head is NOT murder if they are an enemy soldier during wartime, or if they are a brutal thug trying to kill me for the contents of my wallet, or if they are a criminal who has been sentenced to death by firing squad. Whether or not an intentional killing is murder is a legal question that depends heavily on the context. To assert that no legal analysis is necessary betrays an ignorance of the law.
11.2.2007 11:23pm
AnonLawStudent:
Mark Field,

Point-by-point:
(1) Regarding Hamilton, Marshall, and Wilson. In your 7:26PM post, you imply/assume that the President must obey limits on his powers passed by Congress. Hamilton is traditionally cited in support of this, stating in Federalist 78 that limitations on legislative power “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void." Likewise, Marshall. Jonathan Elliot, 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 554 (2d ed. 1836). However, both statements were in reference to personal rights, not the powers of a co-equal branch. Wilson, in contrast, argued that the President could refuse to enforce a law which he believed violated the Constitution. Jonathan Elliot, 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 446 (2d ed. 1836). In short, there was disagreement as to the ability of Congress to restrict the President.

(2) Your *certainty* applies to both separation/distribution of powers and the definition of torture.

(3) Noted.

(4) Thank you for pointing out the keyboard slip. To avoid future confusion, we are referring to Survival Escape Resistance and Evasion training, which takes place at, inter alia, Fairchild AFB and NAS Brunswick. As you noted, the statutory definitions of torture generally refer to EFFECTS on the body, i.e. "severe physical or mental pain or suffering," 18 USC 2340, and has been interpreted as limited to organ failure or equivalents (there are other statutory references, some indirect, but I'm disinclined to track them down). Point being, this type of training does not constitute "torture" under the applicable legal definitions. My thoughts are that if we subject our own troops to it, even in training for resistance, the EFFECT doesn't rise to the level of "severe mental or physical pain" equivalent to organ failure. As indicia, I would note that the Navy doesn't think highly of damaging the very expensive bodies of its aviators, and SERE training occurs after winging.

(5) Alkali at 6:27PM refers to hypothermia and sleep deprivation. His *certainty* is the same as yours, but my apologies for the confusion. I guess I'm just an awful human being for not being as certain about something so *obvious*. Please point out the difference to me, if you will. I do, however, recall seeing the specwar wannabes treading water in ice-holes one January.
11.2.2007 11:36pm
ms (mail):
"... if I am persuaded by your legal analysis I will write a post explaining why I think the practice is illegal..."

As Zathras noted above, Marty Lederman has presented the main legal arguments against waterboarding, so the outline of the legal position is available. Those arguments -- which include examples of successful prosecutions of both American and enemy military officers for the practice of waterboarding-- should be sufficient to shift the burden of argument to those who are either (1) unclear about the legal status of waterboarding, or (2) believe it is legal.

It would help to know what kind of evidence would be compelling to those in either of these categories. What would an opponent of the legality of waterboarding have to show? Multiple successful prosecutions under federal or international law over a hundred years? Precedent for prohibition under Common Article 3 of the Geneva Convention? An OLC opinion? Multiple decisions by federal courts of appeals? A federal statutory provision prohibiting waterboarding? A Supreme Court opinion holding that waterboarding is unconstitutional?

What's the burden of argument here?
11.2.2007 11:44pm
MarkField (mail):

In your 7:26PM post, you imply/assume that the President must obey limits on his powers passed by Congress.


I wouldn't phrase it quite that way, but there's no doubt that I believe that the President must obey constitutional laws passed by Congress. I'm not sure how that affects the discussion here. I'm not aware of any claim that Congress exceeded its power when it passed 18 USC Sec. 2340, nor that the Senate did so when it ratified the CAT. AFAIK, the Administration has never asserted any such thing, nor has it ever claimed that Congress could not ban waterboarding. To the contrary, the claim -- at least as I understand it -- is that Congress has failed to ban waterboarding. A number of commenters, including Smokey in a post to which I responded, have made substantially this latter argument. Thus, while I now understand the distinction you offer between Hamilton, Marshall, and Wilson, I still don't understand how it might apply to this discussion.


My thoughts are that if we subject our own troops to it, even in training for resistance, the EFFECT doesn't rise to the level of "severe mental or physical pain" equivalent to organ failure.


I assume you're paraphrasing the MCA with your quoted words. Let's clarify that. Sec. 948r incorporates the definition of torture from 18 USC Sec. 2340. Thus, there's no change in the law there. Nor is there any reference to "organ failure". As for whether it constitutes torture, at least one SERE officer disagrees with you. Cite.
11.3.2007 12:31am
MarkField (mail):
One more point. Electrodes to the genitals, if applied briefly enough, wouldn't cause organ failure. Keep doing it, and organ failure still probably wouldn't happen. Nor would the body be disfigured. I don't know many people, though, who would deny that it's torture. Same with mock executions.

As for waterboarding, an organ -- the lungs -- does fail (at least temporarily). That's rather the point.
11.3.2007 12:41am
OrinKerr:
Drake writes:
Waterboarding is so paradigmatic a form of torture that asking whether it is "torture" is akin to asking whether intentionally shooting someone in the head is "murder."
Not to quibble too much, but often intentionally shooting someone in the head is not murder. If it is performed in the "heat of passion," for example, it will be only manslaughter in most jurisdictions. This is pretty basic criminal law, I think; it's certainly a significant part of most first year criminal law classes.
That no court has weighed in on the matter should be considered instructive rather than confounding.
Why? I don't know of any cases at all construing this statute. What does that instruct?
Nonetheless, I will give the legal response you request, but only as to those claims of the administration you certify as colorable.
Well, I'm not an expert in the Adminisration's arguments: I assume you are, as you are the legal expert on this issue who knows all about it. But one argument I recall involves the word "prolonged." For conduct involving mental pain to constitute torture under 18 U.S.C. 2340, the actor must have purpose to cause mental harm that is "prolonged." If the actor only has the intent to cause mental pain of less duration than a "prolonged" duration, then it is not torture under the statutory definition.

As I understand it, defenders of the Bush Administration claim that waterboarding is not intended to cause "prolonged" mental pain, but is only intended to cause short term mental pain. That seems to raise the line-drawing issue of just how long something needs to be to be "prolonged," what the mental "pain" is that is prolonged, and whether waterboarding meets that. Perhaps you could start there? I really look forward to your analysis; if you can shed light on this issue I would really appreciate it.

Thanks,
Orin
11.3.2007 1:41am
cboldt (mail):
-- To the contrary, the claim -- at least as I understand it -- is that Congress has failed to ban waterboarding. --

.

My take on the statutory progression is that Congress un-banned waterboarding when it executed what is now P.L. 109-366.

.

Before that, the definition of "cruel and inhuman" was as defined under the eighth amendment to the US Constitution.

.

But P.L. 109-366 changed that. It established two tiers of cruel and inhuman. One tier (which includes waterboarding and all sorts of 'neat stuff') being non-punishable, but still illegal.

.

Congress un-banned waterboarding in 2006. It added language to insure there was no war crime penalty for waterboarding, under US law.

.

But it's okay, waterboarding is still illegal.
11.3.2007 1:42am
SteveIL (mail) (www):
Mark Field said:

As for waterboarding, an organ -- the lungs -- does fail (at least temporarily). That's rather the point.

The relevant parts of 18 U.S.C. § 2340 are as follows:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

Having never been waterboarded, I have no idea if waterboarding would fit in as violations of paragraphs (1), (2)(A), and/or (2)(C). Since even Chuck Schumer, who suported Mukasey and will vote to move the nomination to the Senate floor, has indicated the practice could be used in extreme circumstances (e.g., getting information that will save hundreds or thousands of civilian American lives from a potential nuclear attack). As no permanent damage is done to the lungs (provided the person being waterboarded isn't killed, which would then add a murder charge, as well as a violation of Sec. 2340A, to the questioner), and the fact that waterboarding can in no way be construed as causing "prolonged mental harm", I think both arguments about whether or not waterboarding is torture are valid.

Which brings me back to my original question. If Congress wants to call waterboarding torture, why can't they write it into law that it is?
11.3.2007 1:52am
American Psikhushka (mail) (www):
SteveIL-

And remember, we're talking about what to do with non-American unlawful enemy combatants being held overseas, not anybody held in the United States, or anybody covered by the Geneva conventions.

My understanding is that the system that has been constructed allows the president to define anyone as an "enemy combatant" at his whim, regardless of location or citizenship. So if the waiter at Shoney's spills coffee on the "unitary executive" he could be declared an "enemy combatant", taken to a detention facility, and subjected to treatment that is commonly defined as torture under federal and international law. All without the possibility of these actions being judicially reviewed for legality, Constitutionality, appropriateness, competence, etc. in response to a habeas corpus petition. Can you provide evidence that this isn't allowed under the current system?
11.3.2007 2:41am
American Psikhushka (mail) (www):
SteveIL-

Waterboarding clearly violates sections 2A and 2C of the statute you cite. That violations of both those sections causes "prolonged mental harm" is assumed by the statute. So it is already "written into the law" that waterboarding is torture.
11.3.2007 2:52am
Angeleno:
Orin,
First, physical pain or suffering doesn't have to be prolonged to be torture — just "severe." I'm not sure what legal authority one would use in order to establish this. It lends itself to a factual inquiry about the procedure and a judgment about whether the physical suffering it causes is "severe" and whether that is intentional. And we certainly have factual information about it that might persuade a person of that. For example, check this out — the opinion of a counterterrorism expert who has experienced waterboarding and has trained soldiers by subjecting them to it (to prepare them for enemy tactics).
The point of the activity is to cause suffering that is severe — that's why, according to this expert, most detainees will say anything in order to get it to stop.

As for the mental harm issue (not that it's clear to me that you have to get there, since the physical suffering issue may well conclude the inquiry):
I read Congress's use of the word "the" in the phrase "'severe mental pain or suffering' means the prolonged mental harm caused by or resulting from" is that the items set forth after that are assumed to create prolonged mental harm. Otherwise, what does the "the" mean? If this is so, a person acting under color of law specifically intending to cause the prolonged harm that is assumed to come from inflicting 2(A)-(D) is violating the law.

A contrary interpretation arguably supported by the statutory language would be that since Congress required the specific intent to cause "prolonged mental harm," one would have to look at whether that intent exists on a case by case basis.

I think this interpretation renders the "the" as surplusage. But on its own terms I'm very troubled by this interpretation anyway. I would expect that the answer to this question would be no in virtually all cases where the goal of the interrogation is to extract information, as any interrogator with that goal is unlikely to care whether the mental harm done to the detainee is "prolonged." Thus, under this interpretation, even classic tortures such as the rack, electroshocks to genitals, and similar methods would not be illegal under the "mental harm" prong except in those exceptional (nonexistent?) cases where specific intent to cause prolonged mental harm could be proved. I can't believe this is what Congress intended, as it would render the category "mental harm" trivial and base the determination on factors that are manifestly irrelevant to the concerns Congress would have had in enacting the statute, and that are articulated in Section 1.

If there is another argument consistent with the statute in favor of a more permissive interpretation of the "mental harm" associated with waterboarding (or genital electroshock, for that matter) as non-torture, I don't see it. As I read this, either (1) the intent to cause prolonged mental harm is assumed when there is an intent to cause harm by engaging in one of the activities set forth in 2(A)-(D), or (2) there needs to be a case by case determination of the intent. While both of these are problematic, I'm inclined to think #2 is untenable for the reasons I state above. As I haven't thought about this much before, I'm interested in any contrary interpretations based on reasoning or authority.
11.3.2007 4:47am
Angeleno:
In case it isn't clear, the reference to "torture" and to statutory language is all referring to 18 U.S.C. § 2340 in my previous post -- sorry if that wasn't clear.
11.3.2007 4:49am
Lonetown (mail):
Congress had a chance to outlaw waterboarding and passed.

This to me has the whiff of the same strategy used by liberals to get the courts to enact legislation they can't enact themselves.
11.3.2007 8:54am
Porkchop:
This link DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS, which was posted on Balkinization (the link noted above)is a draft law review article by Evan Wallach, a former Army JAG officer, current judge on the International Court of Trade, and sometime adjunct professor of the law of war at GMU, NYU, and Brooklyn Law Schools discussing the history and legality of various forms of water torture, including "waterboarding" in U.S. law, starting with the Philippines, though World War II, and Vietnam. The draft is available at that URL by permission of the author.

We used to court-martial and convict soldiers guilty of using such techniques. It was a scandal in 1902 (reported by the then conservative (I am told) New York Times). Interestingly, the arguments in its favor were essentially the same as the ones used today. There were prosecutions of US soldiers for using water torture in Vietnam, as well.

War crimes tribunals convicted Japanese soldiers accused of waterboarding U.S. POW after World War II. A couple of cases involved torture of airmen who didn't make it home after the Doolittle Raid on Tokyo.

Read the article and draw your own conclusions, folks, but enough theoretical drivel. Maybe Judge Mukasey (and Professor Yoo) should look at the case law. I'm pretty well convinced by the quoted testimony from the trials that waterboarding is torture. I'm also pretty well convinced that under both U.S. law and international law accepted by the U.S., any form of water torture is illegal. I'd really like to hear from someone who reads the article how one could conclude otherwise.
11.3.2007 10:15am
Porkchop:
I can never get links to post. Here's the URL (in two parts because the character limit won't let me post it as one):

Part 1 -- http://pegc.us/archive/Articles/
Part 2 -- wallach_drop_by_drop_draft_20061016.pdf



Enjoy.
11.3.2007 10:24am
Drake (mail) (www):
"Not to quibble too much, but often intentionally shooting someone in the head is not murder. If it is performed in the "heat of passion," for example, it will be only manslaughter in most jurisdictions. This is pretty basic criminal law, I think...." (Link.)

Well, I think you do quibble too much: "Murder" is very commonly, if not strictly legally, used to encompass any illegal killing (of which manslaughter is one type); and I was writing a comment on a blog rather than submitting a brief to a court. This is pretty basic common sense, I think.

If it suits you, though, replace "murder" with "criminal homicide." I won't quibble.

"I assume you are, as you are the legal expert on this issue who knows all about it."

I'd invite you to show me one sentence I wrote that supports the notion I was holding myself as expert about anything.

"For conduct involving mental pain to constitute torture under 18 U.S.C. 2340, the actor must have purpose to cause mental harm that is 'prolonged.'"

First, you're omitting the "physical pain" component of the statute. Causing "severe physical pain" is sufficient for an act to qualify as "torture." Does waterboarding inflict "severe physical pain"? Well, ask anyone undergoing the procedure if they are experiencing "severe physical pain." And if you don't get the answer you want, keep applying the technique until you do. Eventually, you will. Which is not beside the point. (A point developed infra.)

Second, assuming (probably counterfactually) that waterboarding isn't intended to inflict severe physical pain, it self-evidently is intended to cause prolonged mental harm. Yes, the "prolonged" language in the "mental harm" clause does raise a line-drawing "issue." As do indeed the terms "mental" and "harm." And the verb "to be."

These difficulties, though, tend to be eased by considering what is involved in the practice of waterboarding and applying a dash of logic to the administration's argument about what the practice is intended to accomplish.

The procedure of waterboarding involves binding the prisoner to a board in a supine position, feet slightly higher than the head. Cellophane is wrapped over the prisoner's face, and then water is poured over him. This elicits a gag reflex, and, as ABC puts it, "a terrifying fear of drowning...."

Of course that inducement of terror would have to be a sine qua non of waterboarding's touted efficacy: Presumably, mere physical discomfort would be insufficient to elicit information from an elite, well-trained jihadi bent on resisting the infidel's interrogation efforts. (This terror-inducing aspect of waterboarding is also probably why John McCain, who has some relevant personal experience, has called waterboarding "torture, very exquisite torture.")

But then this renders the administration's argument something like the following: We use water-boarding intending to elicit a terrifying fear of death in the subject, but not intending to cause any prolonged mental harm.

I say that the administration's argument deserves a derisive "Oh, please."

And can I just suggest that the idea we ought to exercise maximal charity toward the arguments lodged in favor of what is at the very least arguably torture is misbegotten? It doesn't take expertise in the law of torture justifiably to presume that waterboarding is torture, any more than it takes a chef to know when the toast is burnt.
11.3.2007 11:26am
MarkField (mail):

Having never been waterboarded, I have no idea if waterboarding would fit in as violations of paragraphs (1), (2)(A), and/or (2)(C).


Others have given substantially the responses I would have given.

What most disturbs me about this conversation is the lack of historical knowledge and perspective by the "doubters" (I won't go so far, yet, as to say "denialists"). Waterboarding has always and everywhere been considered a paradigmatic example of torture, from the dungeons of the Inquisition to those of Pol Pot. As several links in this thread have established, US law has punished those who were found to have used it. If you now want to change that common understanding, you'll have to make the argument yourself instead of demanding that the other side do so. We conservatives are just trying to maintain existing moral standards.
11.3.2007 12:23pm
Porkchop:

Second, assuming (probably counterfactually) that waterboarding isn't intended to inflict severe physical pain, it self-evidently is intended to cause prolonged mental harm. Yes, the "prolonged" language in the "mental harm" clause does raise a line-drawing "issue." As do indeed the terms "mental" and "harm." And the verb "to be."


The draft law review I mentioned above does address some of the long term psychological effects of waterboarding. If a lifetime of panic attacks counts, then I would think it would be "prolonged." Maybe the waterboarder doesn't *mean* to impose prolonged harm, but he still does.
11.3.2007 12:51pm
jukeboxgrad (mail):
Porkchop, thanks for that helpful article ("Drop by Drop: Forgetting the History of Water Torture in U.S. Courts"). The link in a nicer form is here: pdf.

Here's the article's synopsis:

Historical analysis demonstrates U.S. courts have consistently held artificial drowning interrogation is torture which, by its nature, violates U.S. statutory prohibitions.


Lots of people are pretending that history doesn't exist.

"Maybe the waterboarder doesn't *mean* to impose prolonged harm, but he still does."

Yes. As several people have pointed out, the statute takes for granted that prolonged harm is an assumed consequence of the practices mentioned in the statute (like imposing "the threat of imminent death").

Another helpful article is this (1/4/05): "New Opinion Will Not Prevent Torture or Cruel, Inhuman or Degrading Treatment, Particularly Severe Mental Pain and Suffering."

This article goes into detail about the "prolonged" issue, which has been mentioned by Orin and others, and which seems to be a source of confusion. From the article:

It is obvious from the language and syntax that the four enumerated practices are prohibited. The use of the phrase “the prolonged mental harm caused by” is a determination that Congress deemed these to cause harm; if it were otherwise, the language would read “prolonged mental harm caused by.” The inclusion of the word “the” makes this clear. [The author is making a point about "the" that Angeleno just made.]

… under OLC’s view, the acts themselves—which are specifically enumerated in the anti-torture statute—are not considered torture. It is only when there exists proof of long term harm that torture can be said to exist. This turns the very idea of the prohibition against torture on its head since the purpose of the laws against torture is to prevent interrogators from using it in the first place, rather than waiting to see what impact it may have. There would be little reason for interrogators to worry about being held accountable for engaging in horrific acts of psychological torture.


Humans have an inherent capacity for evil, and an inherent capacity to cleverly rationalize evil. America is sliding into that same ancient swamp.
11.3.2007 1:12pm
OrinKerr:
Drake writes:
Well, I think you do quibble too much: "Murder" is very commonly, if not strictly legally, used to encompass any illegal killing (of which manslaughter is one type); and I was writing a comment on a blog rather than submitting a brief to a court. This is pretty basic common sense, I think.
Maybe I'm missing something, but I thought the point of the thread is about the "strictly legal" question. To go back to Mukasey, no one ever asked him if he thought waterboarding fit a typical person's understanding of torture. He was asked a technical legal question about if he thought waterboarding was torture.

As for your legal argument on waterboarding, can I ask you to complete the argument? If I understand you correctly, your argument seems to be that waterboarding is torture because either (a) it involves physical pain, or (b) it both looks like something we often think of as torture and it is used to achieve the goals of torture. But can you complete the picture a bit by explaining (1) what is the distinction between physical pain and mental pain and (2) how the appearance and goals of the procedure inform the meaning of the statute?
11.3.2007 1:29pm
MarkField (mail):

To go back to Mukasey, no one ever asked him if he thought waterboarding fit a typical person's understanding of torture. He was asked a technical legal question about if he thought waterboarding was torture.


Let's back up for a minute and think about how someone would or should respond to a question. Suppose Mukasey were asked, "If I deliberately hold someone's head under the water until he drowns, is that murder?"

Now, what might we expect in a response to such a question? To me, anyway, nobody but a robot would say "I am not familiar with that particular situation and I would have to study it." That response is -- again, to me -- pretty obviously disingenuous, if not downright dishonest. What I would expect the answer to look like is something like this:
"Generally speaking, yes. Now, there could be unusual situations in which the requisite intent is missing or a defense is present which your facts don't give, but in general, of course it is."
11.3.2007 1:50pm
SteveIL (mail) (www):
American Psikhushka said:

My understanding is that the system that has been constructed allows the president to define anyone as an "enemy combatant" at his whim, regardless of location or citizenship.

I've read the 2006 MCA and it doesn't define just anyone as an "unlawful enemy combatant". It does seem to be a bit too open-ended in the definition, but there is a limit.

Mark Field said:

What most disturbs me about this conversation is the lack of historical knowledge and perspective by the "doubters" (I won't go so far, yet, as to say "denialists"). Waterboarding has always and everywhere been considered a paradigmatic example of torture,...

The fact of the matter is we have elected members of Congress, of both parties, who do have questions on whether it should or should not be used in extreme circumstances. And if that's the case, wouldn't it make sense that there are unelected federal judges and Justices who would see it that way from a legal point of view? My problem is leaving it up to the unelected, whether they be members of the unelected Judiciary Branch or unelected bureaucrats in the Executive Branch. We elect members of Congress to fulfill their constitutional obligation to make laws, not anyone else. And I get very angry when they leave it to the unelected to do their jobs for them, as we've seen for far too often over the past several decades. As the first comment from PatHMV concludes:

The Senate shouldn't refuse to confirm a nominee for Attorney General simply because he recognizes that Congress itself has not prohibited waterboarding specifically and thus believes, quite rationally, that it remains a policy choice open to the President.
11.3.2007 1:58pm
MarkField (mail):

The fact of the matter is we have elected members of Congress, of both parties, who do have questions on whether it should or should not be used in extreme circumstances.


I'm not quite sure what point you're making here. I think it's important to separate out two distinct issues:

1. Is it torture?

2. Might someone have a defense to it (e.g., necessity)?

Again, Mukasey was perfectly free in his response to make such distinctions. His refusal to do so was what led to the problem.


My problem is leaving it up to the unelected, whether they be members of the unelected Judiciary Branch or unelected bureaucrats in the Executive Branch.


I've discussed this point above; I don't understand it at all. Congress has passed a statute which defines torture. Pace PatHMV, statutes don't try to list all conceivable examples of wrongdoing they prohibit. Instead, what they do is define the wrongdoing in general terms. It's then up to the judicial system -- those unelected folks you condemn -- to apply the general prohibition to the specific case. That's how we handle murder -- not by passing a statute which lists every example of "malice aforethought", but by including "malice aforethought" as an element of the crime. Same with "reasonable person", etc.
11.3.2007 2:26pm
jukeboxgrad (mail):
steve: "Congress itself has not prohibited waterboarding specifically"

There are an infinite number of methods that could be used to murder someone. The vast majority of those methods have not been "prohibited … specifically" by Congress or anyone else. Murder is still murder even if you develop a clever method that has not been "prohibited … specifically." Likewise for torture, and for all sorts of other crimes, where statute, history and common sense provide more than enough of a framework to understand when a certain activity falls within the definition of the crime.

I see Mark already explained this.

"we have elected members of Congress, of both parties, who do have questions on whether it should or should not be used"

Which only demonstrates that profound moral impairments sometimes afflict people other than Republicans.

orin: "can you complete the picture a bit by explaining … how the appearance and goals of the procedure inform the meaning of the statute?"

It's not complicated. The statute expressly forbids "the threat of imminent death." Pouring water into someone's lungs does indeed present "the threat of imminent death." The procedure is done precisely for that purpose (make the person believe death is imminent), and that's precisely why it's effective at getting the person to make statements that will cause the procedure to end. (Whether those statements are likely to be truthful and valuable is a separate matter.)

The reason we do it is because it works (in a manner of speaking), and the reason why it works is because it's torture. If it was really 'not so bad' (as many are trying to suggest), then it would not have effectiveness (or the appearance of effectiveness), and the people who do it would not be fighting so hard to preserve their ability to keep doing it.
11.3.2007 2:47pm
SteveIL (mail) (www):
Mark Field said:

Again, Mukasey was perfectly free in his response to make such distinctions. His refusal to do so was what led to the problem.

Congress is perfectly free in their response to make such distinctions. Not a potential bureaucrat. Their refusal has led to the problem. And it is entirely political, not legal.

Mark Field said:

Pace PatHMV, statutes don't try to list all conceivable examples of wrongdoing they prohibit. Instead, what they do is define the wrongdoing in general terms. It's then up to the judicial system -- those unelected folks you condemn -- to apply the general prohibition to the specific case. That's how we handle murder -- not by passing a statute which lists every example of "malice aforethought", but by including "malice aforethought" as an element of the crime.

I think the more apt example is what does the government say when one person kills another person. Murder is murder, regardless of method, and for the reason you provided. But killing is a lot trickier.

Take abortion for example. We know that a human being (or what will become a human being) is killed. But when is it illegal? Up until 2003 when Congress passed the Partial Birth Abortion Ban, it was left up to the courts to decide whether or not a restriction on abortions could be passed into law, all based on Roe v. Wade. This year, the Gonzales v. Carhart case stated that the PBA Ban was constitutional. Now, had there been a different set of Justices on the Supreme Court, say a court with the same type of judges that passed Roe. Things could have gone very differently. But they didn't. What we have is a specific example of Congress using its constitutional Article I, Section 1 powers of putting specificity into a very touchy legal issue.

Based on this, I see no reason why the elected members of Congress can't answer the question of whether or not they want to make waterboarding a form of torture. That's their job.
11.3.2007 3:08pm
MarkField (mail):
Steve, I'm not sure I understand your reference to the PBAA, but if I do it's a very different situation. In that case, Congress passed an exception to the existing general rule. That is, frequently, what we expect Congress to do rather than courts (courts sometimes do it too, of course). No problem. What we do NOT expect Congress to do is provide a list rather than a general rule (for the obvious reason: inclusio unius). By passing the torture statute, Congress already did its job. There's no need to do it again just because someone violated the statute and now wants it not to apply.
11.3.2007 3:27pm
jukeboxgrad (mail):
steve: "I see no reason why the elected members of Congress can't answer the question of whether or not they want to make waterboarding a form of torture."

US courts have considered waterboarding a form of torture for a long time (pdf). Why is there a need for new law to establish what's already been established?

By the way, the problem with making laws absurdly specific is that this only encourages clever and immoral people to invent variations on those specifics, as a way to circumvent the law. Laws are general for a reason. A law expressly aimed at waterboarding invites future torturers to invent some clever new method, and then argue that it must be legal since it's not expressly prohibited. That's exactly the argument you're presenting now: that it's legal since it's not expressly mentioned in the statute.

As Mark has pointed out, there is an issue of inclusio unius est exclusio alterius: "where law expressly describes [a] particular situation to which it shall apply, an irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded" (Black’s Law Dictionary).
11.3.2007 3:55pm
Angeleno:
Orin,
You seem kind of focused on teaching Drake some kind of lesson -- but I think my post about, and Porkchop's, and some of Mark Field's, and the law review article Porkchop cites, contain the type of information and analysis you're asking for, and so I'm not sure why you wouldn't respond to the substance of the arguments that have been made rather than continue that less-fruitful exchange. I am curious whether you find these arguments persuasive on their merits, and if not, why.
11.3.2007 5:07pm
OrinKerr:
Angeleno,

My apologies -- I have been been very busy with work, and I already spent about 3 hours on the post and another 3 or 4 hours in the comments. Sometimes I can't spend so much time debating every commenter and following and analyzing every link. I would really like to, but my Dean, my students, and my co-authors wouldn't very much appreciate it. So I often end up picking one or two commenters and trying to engage them; sometimes it works but sometimes it doesn't, and in a thred with 200+ comments I cannot try to follow and engage with every comment. I hope you understand.

I may end up writing more on this, and if I do I will be sure to read your comments closely and consider them before I do.

Orin
11.3.2007 5:27pm
Angeleno:
Orin,
Thanks for the response. I appreciate that blogging takes a lot of time and that you can't respond to everything (and I appreciate your thoughtful original post on this important issue). And I certainly don't pretend to have all the answer to your tough questions - I think other sources cited by comments above have addressed some of these questions better. I just thought I'd ask, since several comments above appear to be responsive to particular questions you have (questions that I think are important as well), and since you are continuing to spend time engaging with some commenters who clearly aren't interested in, or able to, provide you with anything you think is responsive.
11.3.2007 5:43pm
Chimaxx (mail):
Orin: That you at least for pointing out the president's attempt to game the system by trying to define what questions are or are not "fair" as it pursues its Advice and Consent duty. Yes the executive can put pressure on the Congress in this fashion but it is imperious and dishonest.
11.3.2007 6:20pm
Andrew J. Lazarus (mail):
There's an interesting cross-thread synergy here. Elsewhere there was a comment that John Yoo's "unitary-executive-on-steroids" theory could only be a product of the academy, where originality is prized over common sense.

Here we have AnonLawStudent doing much the same with his deconstruction (in the "theory" sense) of advise and consent. And when he's all done, our democracy is replaced by the despotism of democratic centralism, where the Congress of People's Deputies rubberstamps the appointments of the Fearless Leader.

As to Mukasey, what is going on is simple. The leadership of the USA us comprised of war criminals.
11.3.2007 8:47pm
Drake (mail) (www):
"Maybe I'm missing something, but I thought the point of the thread is about the "strictly legal" question." (Link.)

If the point at issue in our exchange is all and only a strictly legal one, then I'm the one missing something.

The legal issue -- whether waterboarding is "torture" under some relevant legal authority -- is certainly one of the issues being developed in this thread.

But as I saw it, the main issue raised by the original excerpt I quoted was political. That issue had to do with what epistemic burden a citizen has when it comes to judging the fitness of officials for office.

On this score, you suggested that for you competently to judge Mukasey's fitness in light of his response to questions about waterboarding, you would have to "study" (in pursuit of an "educated opinion") as to whether waterboarding is "torture" in some relevant sense (which as I took it might be one of many legal senses, or a moral sense, or a common sense, or some other sense).

I challenged this standard (admittedly in a figurative manner), and wondered (less figuratively, at the end of this comment) why a citizen would want to adopt an attitude of agnosticism about (at the very least) arguable acts of torture. To give more content to this notion, I also cited alkali's excellent comment ("The easiest cases don't even arise," quoting Posner).

Unfortunately, as far as I can tell, you've completely ignored the political dimension here. That's okay. I understand. You're busy.

Meanwhile, I've acceded to your request to address the legal issue, and I gave what I thought was a fairly plain sketch of the argument structure, which I'll recap as follows:
(1) On the definition of the statute, "torture" encompasses both physical and mental pain.
(2) Waterboarding probably induces physical pain. Prima facie evidence that this is so is the fact that you could get any subject (even those who are highly motivated to claim the procedure is not painful) to state that the procedure is physically painful by subjecting him to the procedure. (Gedankenexperiments aren't generally admissible in court, but I'm wagering you'll agree with my test results enough to wave objections.)
(3) Waterboarding presumptively causes prolonged mental harm. The fact that the technique is intended to induce a "terrifying fear of dying" eviscerates the claim that it is not expected to cause "prolonged mental harm." (Suppressed premise: Terrifying fear of dying generally results in prolonged mental harm.)
Far less than an exhaustive legal analysis, but at least a start, and more than suggesting waterboarding is torture merely because it "looks like something we often think of as torture and it used to achieve the goals of torture," as you (rather uncharitably) limned it.
11.3.2007 11:11pm