Oh he knows what it means, he just can't say it and call it torture because then Jr. would probably go to jail. ------------- When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off "our enemies," for example), but the key to his rationale appears to be his expressed fear that the attorney general's public acknowledgment that waterboarding is torture would place interrogators in "personal legal jeopardy." By this logic, he can't come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is "steering clear of a potential legal quagmire for the Bush administration" by not answering the question. One legal expert provides the worst case scenario: A Pandora's Box! Does Mukasey have any choice? But the key word here would have to be "theoretical." "Theoretically," yes, Mukasey's outright condemnation of waterboarding as "repugnant" not just to him personally, but also to the law, would open the door to criminal liability. But there would appear to be some insurmountable obstacles to that actually happening. On the question of criminal liability, Marty Lederman, formerly of the Justice Department's Office of Legal Counsel, the office that later provided the legal basis for the use of waterboarding in the field, writes that "There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful." Such a prosecution would in effect pit the Justice Department against itself. The Times adds that "prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization." (The threat of lawsuits, though far less dire, seems a greater possibility.) But that theoretical fear is a strong one. The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It's for that reason the OLC's ability to issue “free get-out-of jail cards” made Goldsmith's tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn't have nominated someone who might take them back. http://www.tpmmuckraker.com/archives/004620.php
The Times article -- Nominee’s Stand May Avoid Tangle of Torture Cases By SCOTT SHANE WASHINGTON, Oct. 31 — In adamantly refusing to declare waterboarding illegal, Michael B. Mukasey, the nominee for attorney general, is steering clear of a potential legal quagmire for the Bush administration: criminal prosecution or lawsuits against Central Intelligence Agency officers who used the harsh interrogation practice and those who authorized it, legal experts said Wednesday. On Wednesday, Senator Patrick J. Leahy, Democrat of Vermont, the chairman of the Senate Judiciary Committee, scheduled a confirmation vote for Tuesday amid deep uncertainty about the outcome at the committee level. If Mr. Mukasey’s nomination reaches the Senate floor, moderate Democrats appear likely to join Republicans to produce a majority for confirmation. But a party-line vote in the Judiciary Committee, which seemed a possibility, could block the nomination from reaching the floor. The biggest problem for Mr. Mukasey remains his refusal to take a clear legal position on the interrogation technique. Fear of opening the door to criminal or civil liability for torture or abuse, whether in an American court or in courts overseas, appeared to loom large in Mr. Mukasey’s calculations as he parried questions from the committee this week. Some legal experts suggested that liability could go all the way to President Bush if he explicitly authorized waterboarding. Waterboarding is a centuries-old interrogation method in which a prisoner’s face is covered with cloth and then doused with water to create a feeling of suffocation. It was used in 2002 and 2003 by C.I.A. officers questioning at least three high-level terrorism suspects, government officials say. Senator Arlen Specter of Pennsylvania, the committee’s top Republican, said at a hearing Wednesday that any statement by Mr. Mukasey that waterboarding is torture could fuel criminal charges or lawsuits against those responsible for waterboarding. “The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened,” Mr. Specter said. Mr. Specter, who said he was briefed on the interrogation issue this week by the C.I.A. director, Gen. Michael V. Hayden, noted that human rights groups had filed a criminal complaint on torture against Donald H. Rumsfeld, the former defense secretary, while he was visiting France this month. Such cases, based on the legal concept of “universal jurisdiction” for torture and certain other crimes, have proliferated in recent years, though they have often posed more of an aggravation than a serious threat. Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004, wrote in his recent memoir, “The Terror Presidency,” that the possibility of future prosecution for aggressive actions against terrorism was a constant worry inside the Bush administration. “I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators, acting with the benefit of hindsight in a different political environment, would impose criminal penalties on heat-of-battle judgment calls,” Mr. Goldsmith wrote. Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said. “You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey. Robert M. Chesney, of Wake Forest University School of Law, said Mr. Mukasey’s statements could influence the climate in which prosecution decisions are made. “There is a culture of concern about where Monday-morning quarterbacking could lead to,” Mr. Chesney said. If Mr. Mukasey declared waterboarding illegal, “it would make it politically more possible to go after interrogators in the future,” he said. “Whether it would change the legal equities is far less clear.” Mr. Chesney and other specialists emphasized that prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization. Justice Department legal opinions are believed to have approved waterboarding, among other harsh methods. Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said Mr. Mukasey “is hedging in the interest of protecting current and former administration officials from possible prosecution,” either in other countries or by a future American administration. “What he should be doing is providing a straightforward interpretation of the law,” she said. Mr. Mukasey, 66, a retired federal judge from New York, referred to the criminal liability issue several times in nearly 180 pages of written answers delivered to the Senate on Tuesday. He said that while he personally found waterboarding and similar interrogation methods “repugnant,” he could not call them illegal. One reason, he said, was to avoid any implication that intelligence officers and their bosses had broken the law. “I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct,” Mr. Mukasey wrote, “with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.” If the judiciary committee were to split along party lines, the deciding vote could go to Senator Charles E. Schumer, Democrat of New York, who first suggested Mr. Mukasey to succeed Alberto R. Gonzales. That would leave Mr. Schumer, ordinarily an enthusiastic partisan combatant, with a difficult decision: whether to break with his fellow Democrats and save Mr. Mukasey’s nomination or to vote to kill the nomination of a man he has highly praised. On Wednesday, Mr. Schumer was uncharacteristically reluctant to discuss his views. He avoided television crews waiting outside an unrelated press conference and refused to answer questions about the judge’s letter on waterboarding. “I’m not going to comment on Judge Mukasey here,” he said. “I’m reading the letter, I’m going over it.” Dana M. Perino, the White House press secretary, said Democrats were “playing politics” with the waterboarding issue, noting that Mr. Mukasey had not been briefed on classified interrogation methods. “I can’t imagine the Democrats would want to hold back his nomination just because he is a thoughtful, careful thinker who looks at all the facts before he makes a judgment,” Ms. Perino said. Senator Orrin G. Hatch, Republican of Utah, offered a fierce defense of Mr. Mukasey, who he said had spent “40 days in the partisan wilderness,” on the Senate floor. “What kind of crazy, topsy-turvy confirmation process is this?” Mr. Hatch asked. But Senator Sheldon Whitehouse, Democrat of Rhode Island, declared on the floor that he would vote against confirming Mr. Mukasey, whom he called a good man and a brilliant lawyer, because of the torture question. “I don’t think anyone intended this nomination to turn on this issue,” Mr. Whitehouse said. Three Republicans who have denounced waterboarding wrote to Mr. Mukasey on Wednesday, suggesting that they would support him but urging him to declare waterboarding illegal after he is confirmed. The senators, John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina, said anyone who engaged in waterboarding “puts himself at risk of prosecution, including under the War Crimes Act, and opens himself to civil liability as well.” http://www.nytimes.com/2007/11/01/washington/01mukasey.html?_r=1&hp=&oref=slogin&pagewanted=print
The senators, John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina, said anyone who engaged in waterboarding “puts himself at risk of prosecution, including under the War Crimes Act, and opens himself to civil liability as well.”
They all said it in unison ? On Monday or Tuesday, I remember Graham being almost certain that Mukasey would give him the answer he wanted.
He is probably as good a nominee as Bush will put up. So unless you want one more year of Justice department with no leader, he will be confirmed.
If it would open up all sorts of people to prosecution, I don't think it's unreasonable that he hedges, and every nominee is going to have the same problem. You either say it's not torture (and get all the Dems against you) or say it is and cause all sorts of problems for the US government. Everything else I've heard about the guy is that he's very reasonable and independent. I'm not sure we're going to get anyone much better, especially for a grand total of 1 year.
so its ok to lie to congress in order to evade the law? im sorry but that is ridiculous. you either say its not torture, and have a complete and blatant disregard for words, laws and the international community, or you speak the truth and follow the law as nominee for the top cop of the united states. times this goes to the very basis of credibility in the international community that we desperately need. this was one major reason behind the discontent (or should have been) for AG. lets nominate another guy who agrees or at least doesn't have the balls or the morality to uphold the law?
we already know that the bush administration changed the definition of torture to be only things that result in organ failure or death. the things they signed off on are a violation of international law and the 1996 war crimes act, which was passed by a republican congress. there really isnt any question of whether or not they violated the law...they did and they need to be held accountable for it. instead, they went and sent a bunch of untrained, low-level privates and sergeants to prison for following their own orders.
I'm well and truly sick of this. If the US government is torturing people, those responsible SHOULD BE PROSECUTED. I don't give a damn who's up for the Justice spot. Give a clear answer, or go home. If John McCain, John Warner and Lindsey Graham vote for someone who won't call a spade a spade, then they are complete and utter hypocrites. D&D. Attempt to be civil! Impeach Bush for Promoting Torture.
I'm not sure how I managed this, but don't mind the emphasis. D&D. Attempt to be civil! Impeach Bush for Promoting Torture.
Where has he lied? You're quoting the defense lawyer that got kicked off a trial and that's your justification for saying the judge is bad? By this standard, every AG we've ever had and ever will have is bad. Other quotes from that article: The trial, which remains the longest and most complex international terrorism case ever presented in a United States court, involved almost the entire array of national security issues that Judge Mukasey would face if confirmed as the Bush administration’s third attorney general. Those issues include the proper balance between security and liberty, between intelligence gathering and criminal prosecution, and between government secrecy and accountability. ... Judge Mukasey removed Mr. Kuby from the case over what the judge said were conflicts of interest. Other defense lawyers generally praised Judge Mukasey’s handling of the case. “He ran the tightest ship you ever saw,” said Roger L. Stavis, another defense lawyer. “He’s a very kind, generous man, but also a tough law-and-order guy.” ... “The tools we had to charge terrorism were appallingly bad,” said Andrew C. McCarthy, the lead prosecutor. Partly by happenstance, then, the case brought the metaphor of terrorism as a war into an American courtroom. Judge Mukasey was concerned throughout about balancing the defendants’ rights against national security. He ordered an array of potential evidence to be disclosed to the defense, for instance, but drew the line at information he said would needlessly compromise intelligence operations. He may not agree with Congress on every viewpoint, but that's not the point of a confirmation hearing. It's whether he's competent and qualified and reasonable for the job.
Do you hold Democrats to this same standard? For example, if Hillary votes for him as AG, will you denounce her and vote against her for President if she wins the nomination?
Do you honestly think I would vote for the political party that has sullied the name and reputation of the United States by promoting torture? I will vote for whoever the Democratic Party nominates for President and against whoever the GOP nominates without hesitation. Clinton is not President. Clinton didn't nominate this person, and Clinton has yet to vote on his confirmation, because it has yet to come up for a vote. If Mukasey gets confirmed by the committee and it comes up for a vote, I hope she will vote against him, unless he answers the question clearly... that it is torture. John McCain, John Warner and Lindsey Graham are all members of the GOP, have all said they are against torture, and have all largely supported Bush's war in Iraq. They can't have it both ways. You would lump them and the Democrats together. I consider that highly disingenuous, with all due respect. D&D. Attempt to be civil! Impeach Bush for Promoting Torture.
What you said is this: Give a clear answer, or go home. If John McCain, John Warner and Lindsey Graham vote for someone who won't call a spade a spade, then they are complete and utter hypocrites. I guess my question is does that apply to both parties? If a Democrat votes for someone who won't call a spade a space, are they complete and utter hypocrites? If not, why is it OK for one party to vote for people who won't call a spade a spade, but not the other?
That same rhetorical question has me leaning to vote for anyone other than republicans and democrats.
