Impeach Mukasey Now: Waterboarding Not Torture According to Bush’s AG

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Crossposted at Daily Kos and Invictus

I know there is another diary on Mukasey and waterboarding up, by BarbinMD. I recommend it. But this is not a duplicate diary. It covers today’s hearing (still in process as I write), and calls for Mukasey’s impeachment, giving the reasons why. It also goes into some detail on the legal points involved.

Actually, what Michael B. Mukasey said today at his Senate oversight hearing was that waterboarding, under non-specific certain circumstances, is not torture. Of course, he couldn’t say that outright; he said in legalese. In the obscurity of U.S. law, torture is defined as something that “shocks the conscience.” And Mukasey, squirming before Sen. Dick Durbin’s questioning, feels that after extensive review, piles of documents and opinions, the question of waterboarding is — sometimes — “unresolved.”

Here’s some of the testimony between Durbin and Mukasey (thanks to Firedoglake):

Durbin: This chamber has voted on a bipartisan basis against torture.

MM: And the chamber voted down a prohibition on waterboarding.

Durbin: If the detainee treatment act is clear, and even went so far as to offer amnesty to employees of the govt, you still think that the jury’s out on whether the Senate believes that waterboarding is torture.

[Lots of long silences on Mukasey’s part.]

MM: The question is whether the Senate has spoken clearly enough on that issue.

Durbin: Where’s the lack of clarity in the McCain legislation?

MM: Words that are general, words that people on both sides of the debate have already disagreed. To point to this language or that language is to pick nits.

Durbin: As the Chairman has noted here, McCain, Warner, and Graham, lead sponsors of this legislation, have said waterboarding is a war crime.

Durbin: Standard so far has depended on circumstances. Do you see a problem with your ambivalence. It’s due caution.

[mumble mumble mumble]

MM: Your second question. I said waterboarding would not shock the conscience. I described a situation where it would. So far as it would be, that was something put into place by the person who wrote the opinion. [Is this the Bradbury opinion??] The use of such techniques to discover information that was only historical information would not shock the conscience.

Durbin: if it would save many lives, would that shock the conscience. Under the military interrogation standards. They are not interested. You’re saying that when it comes to non-military, it is still unresolved.

MM: It is unresolved.

Unresolved? Mukasey — a lackey if there ever was one — means: we want to keep it “unresolved.” We need to do whatever we want. We embrace legalistic loopholes. We embrace secrecy. And behind these practices, we will continue our reign of terror.

Oh, and by the way, for the social patriots among my readers, AG Mukasey can’t even say whether waterboarding a U.S. citizen is illegal, i.e., it’s open season on everybody now. (See the exchange between Mukasey and Senator Leahy here.)

Loopholes and Judicial Chicanery

If you want to fight torture, you better get a law degree. Because the battle against these inhuman practices, in a Kafkaesque irony meant to lull one’s putative victims to sleep, is reduced to legislative formulae and (endlessly) interpretable legalese. It starts by dividing torture into something called “torture” and something called “CID” (cruel, inhuman and degrading behavior). Then there are varying definitions: international, by treaty, Constitutional, by judicial precedent, etc.

“Shocks the conscience” is a criteria used to judge the existence of “CID” under U.S. law. In the UN Convention Against Torture (ratified by the U.S. in the 1990s), the U.S. listed an unprecedented number of “reservations” to the treaty, explaining under what conditions it would ratify. (The language was the creation of the Reagan administration, but left unchanged by Clinton, and subsequently written into much subsequent legislation, including the Military Commissions Act.)

One of the principle “reservations” to the UN CAN was a redefinition of CID as something to be interpreted under U.S. law. For those who aren’t savvy, that means using “shock the conscience” precedents in U.S. courts, rather than more stringent international standards. For the U.S., it meant greater freedom of action by executive agencies in planning and executing coercive interrogations.

Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to “shock the conscience” if it is perceived as manifestly and grossly unjust, typically by a judge…. In United States law which describes whether or not the due process requirement of the Fifth Amendment to the United States Constitution has been met. This term originally entered into case law with the decision for Rochin v. California (1953). This balancing test is often cited as having subsequently been used in a particularly subjective manner.

Mike Otterman explains how this dubious criteria has been used to weaken the standards by which a government cannot engage in torture or cruel, inhuman, degrading treatment of a prisoner. First, he quotes Assistant Attorney General William Moschella:

With respect to treatment of detainees by the United States Government… the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.”

The last clause is where the entire issue lies. If the behavior is therefore justified by any governmental interest, it’s (grave pause) legal. And guess who decided that? Well, Dick Cheney for one (from Otterman’s piece):

If it’s something that shocks the conscience, the court has agreed that crosses over the line.

Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that’s in the eye of the beholder. But I believe, and we think it’s important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it’s important for us to be able to have effective interrogation of these people when we capture them.

A Lawless Land

There is no more law in America. We have now only rule by an executive. The rest is pettifogging obfuscation to preoccupy the suckers, those not lucky enough, by birth, or by having morals enough not to steal great wealth, to occupy the tall towers of the power elite.

A Congress that cannot deal with such basic issues of human rights and decency is not only politically bankrupt, it is a serious menace to democracy and freedom. Because in their impotence and blustering, they are bringing the very idea of legislative representation and rule by elected represenatives into disrepute. This does not go unregistered abroad. Nor are the enemies of freedom at home unaware, and they are sharpening their long knives, for the final vivisection of the republic.

All must join — left, right, Democratic, Republican, the disaffected and the politically astute — and call for the ouster of this hated man, Michael B. Mukasey. That he is also carrying administration water for obstruction of justice on the U.S. attorneys investigation, and for immunity on FISA, only establishes a trifecta of lawlessness that must be addressed now.

The rot is spreading. The election is months away, but the damage is being done now.

Impeach Mukasey, Bush and Cheney!

Also posted at Invictus


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    • Valtin on January 30, 2008 at 21:08

    Can be found in a joint document by Physicians for Human Rights and Human Rights First: Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality.

    Highly recommended!

    • pfiore8 on January 30, 2008 at 21:13

    it started when we didn’t impeach Nixon and didn’t put the high-profiles on trial and into jail.

    keep the idea alive Valtin…

    and help to keep our energy focused on making it happen:::


    • pfiore8 on January 30, 2008 at 21:19

    but convict him… impeachment is, afterall, a two-step process of indictment and, with sufficient grounds and votes, a conviction…

    • Edger on January 30, 2008 at 22:27

    It is resolved, Mr. Mukasey. You are a flat out liar, and a torturer defending  torturers, IMO.

    David Corn, September 28, 2006

    This Is What Waterboarding Looks Like

    It’s usually described in the media in a matter-of-fact manner. The Washington Post simply referred to waterboarding a few days ago as an interrogation measure that “simulates drowning.” But what does waterboarding look like?

    Below are photographs taken by Jonah Blank last month at Tuol Sleng Prison in Phnom Penh, Cambodia.

    The crux of the issue before Congress can be boiled down to a simple question: Is waterboarding torture? Anybody who considers this practice to be “torture lite” or merely a “tough technique” might want to take a trip to Phnom Penh. The Khymer Rouge were adept at torture, and there was nothing “lite” about their methods. Incidentally, the waterboard in these photo wasn’t merely one among many torture devices highlighted at the prison museum. It was one of only two devices singled out for highlighting (the other was another form of water-torture

    Bottom line: Not only do waterboarding and the other types of torture currently being debated put us in company with the most vile regimes of the past half-century

    These photos are important because most of us have never seen an actual, real-life waterboard. The press typically describes it in the most anodyne ways: a device meant to “simulate drowning” or to “make the prisoner believe he might drown.” But the Khymer Rouge were no jokesters, and they didn’t tailor their abuse to the dictates of the Geneva Convention. They– like so many brutal regimes–made waterboarding one of their primary tools for a simple reason: it is one of the most viciously effective forms of torture ever devised.

    Slate, Monday, Oct. 22, 2007

    All Wet

    Why can’t we renounce waterboarding once and for all?

    What is it about waterboarding that makes the White House so reluctant to renounce it? It’s an old torture technique from the Spanish Inquisition that consists of immobilizing your target on an inclined board, head down, with cloth covering their face. Pouring water over the face simulates drowning. The practice leaves no physical marks. It’s illegal under the Geneva Conventions and has long been treated as a war crime by the United States. We even use this technique to train our own troops to withstand illegal torture by our enemies. As retired Rear Adm. John D. Hutson, a former top Navy lawyer and now dean of Franklin Pierce Law Center in Concord, N.H., testified at Mukasey’s hearing last week, “Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It has been repudiated for centuries. It’s a little bit disconcerting to hear now that we’re not quite sure where waterboarding fits in the scheme of things.”

    For starters, Bush won’t renounce waterboarding because it violates the two choice cocktails of anyone drunk on executive authority: Absolut secrecy and Absolut power.

    First, secrecy. It has long been the view of the Bush administration that nothing can be deemed illegal so long as it remains a secret. Never mind that it’s a secret only to people living in igloos without wireless service. That’s why, even while there’s a major movie out about rendition, we call it a secret. Since they have yet to make a movie called Waterboard, Mukasey could take the absurd position that he isn’t sure precisely what it involves. Cute trick. Call it a secret, and there can be no legal debate. As the White House insisted Friday, “Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified.” If the soon-to-be-AG cannot hazard an opinion on the legality of waterboarding, even when he can read step-by-step accounts of it on the Internet, who are the rest of us to condemn it?

    The problem with this argument is that the administration’s use of waterboarding on detainees has been known publicly since at least May 2004. Everybody knows what it involves, and even if you live in an igloo without wireless, you can tell it’s illegal. The argument that you can’t call it torture until you’ve been “read into” the torture program is just a lawyer’s trick that justifies keeping bad conduct secret to end-run the laws.

    Next, there is the absolute authority argument. The real reason the Bush administration clings to its power to order waterboarding has little to do with any strategic argument and everything to do with the old standby assertion that to renounce his authority to waterboard would be to give away the president’s power.

    Arrest yourself and Mr Bush now, Mr. Mukasey.

  1. You know, Mukasey had a pretty good reputation up until he became AG.  He has been squandering it, and never more so than today.  Anyone who touches Bush comes away stained.  I’d have no problem with impeaching him over the grave harm he has now done to our nation’s reputation and the rule of law by misrepresenting the law, although I am not going to hold my breath.

    • Temmoku on January 31, 2008 at 00:21

    and all the other “little” neocons too!

    BTW, I’m still waiting for that mythical “suitcase” Nukular bomb! That is one that I would really like to see! What a “Fairy Tale”!

    • KrisC on January 31, 2008 at 00:53

    for not even BOTHERING to vote against this slime-ball’s nomination.  Now I hold them BOTH responsible since they are complicit in ‘allowing’ Mukasey to win the nomination…

    Clinton, Obama, Dodd and Biden, all of whom had been critical of the Mukasey nomination, chose to keep campaigning rather than to honor their responsibility to approve or reject presidential appointments.

    Running for president is, to be sure, a big deal. Candidates who happen to be members of the Congress probably cannot be expected to show up for every vote — although Ohio Congressman Dennis Kucinich and Texas Congressman Ron Paul do a remarkably good job of it.  

    But in the tug of war between the executive and legislative branches, shows of strength are meaningful. It matters to send the right signal. Clinton, Obama, Dodd and Biden made it harder to send the right signal about the wrong pick for Attorney General. In so doing, they failed the Republic and the cause of Constitutional renewal that should be more important than any presidential campaign.

    From The Nation

  2. Can I add something?

    Mukasey is being questioned. Cannot anyone there ask a decent question and pin this guy’s ears back?  The “shocks the conscience” test was never followed, even by the Court that announced it in Rochin.  So, obviously, going down that alley is a waste of energy.  The statutory definitions have to be pressed.  Did they do that? No.  Any why not?  Because they cannot ask decent questions?  Because they’re stupid? Because they don’t prepare properly?  Because they’re politicians?  Because they’re complicit? You tell me.  Mukasey’s answers are shameful, disgraceful.  The only thing worse is the questioning.  Congress should be ashamed.

    • Valtin on January 31, 2008 at 03:26

    Buhdy, I think you were writing impeachment diaries before I was born 😉

    I think that must have been, “Impeach Eisenhower!”

  3. Dog fighting goes on and on, even though it is against the law.  I cannot begin to tell you how I feel about an innocent animal being chewed up alive, to the glee of the crowd.  My whole insides turn upside down at the mere thought of that cruelty — near regurgitation — and I have suffered nightmares.

    I think it fair to say that Bush and Cheney have shown us all that they have a propensity for destruction, death and human suffering, as though a sport much like those viewing “dog fights.”  Mukasey is simply a well-chosen “arm” for their affinities.

    Sure he needs to go!  But, REALLY, we need to cut off the snakes’ heads FIRST!  

    Are they just going to ride off into the sunset?  

    We need to get down to brass tacks and REALLY yell louder for Impeachment — support Wexler, Kucinich and all those who have joined them, including Sen. Gravel.

    Thanks, Valtin, for yet again a detailed reportage — this time on the issue of torture.  

    • documel on January 31, 2008 at 04:45

    Sadly, Schumer reccomended Mukasey–it’s time for him to at least apologize.  Sometimes I get the impression that all Dems work for the Evils.  I’m sure that’s true of our “leaders”–Reid/Pelosi.  Also, the last 2 standing for the nomination believe government should be bipartisan–even if the other side is the Devil.  In college I read the Semi-Sovereign People by EE Schattschneider.  Sadly, what he described has gotten worse–they’re all Republicans now. It’s a good book.

  4. Yet they approved his nomination anyway.  

    Bear with me, but I’m reminded of this story:  A little girl was walking along a road on a very cold day.  She saw a snake in the road that was almost frozen.  The snake said, “please put me in your pocket to warm me up, or I’ll die”.  The girl replied, “I’m afraid you’ll bite me.”  The snake promised that if the girl saved him, he wouldn’t bite her.  She picked him up, put him in her pocket, and when the snake warmed up, it bit her.  She cried out:  “Why did you bite me?”  The snake replied, “You knew what I was when you picked me up.”

    The Senate knows what the Bush nominees are when they question them and review their previous records, yet they confirm their nominations anyway.  Later they act amazed when the nominees show their true natures…  

    I’m not impressed by the Senators’ feined surprise when the snakes bite them.  

    • Nordic on February 1, 2008 at 07:07

    and I saw it on Democracy Now this morning (Thursday).  

    Mukasey is a goddamn scumbag.  A worm.  

    I’ve never seen a more overt demonstration of one man’s complete worminess.  He might as well have been eating dogshit on camera for all to see.

    What a pathetic disgusting excuse for a human being this piece of shit is.  

    Absolute dreck.  

    And for what?  A paycheck?  The “status” of being Attorney General?  What a goddamn scumbag.  

  5. on impeaching the whole nasty mess of ’em. The sooner the better, Nancy. And little Chuckie Schumer better not come ’round asking me for any campaign money any time soon, not after foisting Mealymouth Mukasey off on us.

    But I am so sick of this error:

    we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11

    Three thousand Americans were not killed on 11 September 2001. Something like 50 or more nationalities are represented on the casualty lists. Yes, the number of Americans killed was substantial, but to subsume all of the others into “our” category does them and their nations a disservice.

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