Senator Dodd has based his opposition to Michael Mukasey's nomination for Attorney General around Mukasey's fundamentally flawed philosophy of executive power. Mukasey believes, like many other legal advisors throughout the Bush administration, that the president has the power to not obey the law or the Constitution on certain matters of national security - that the president can be above the law. It's hard to think of a concept more damaging to our way of government than this and this point has been the primary focus in Senator Dodd's reasoning for declaring Mukasey an unacceptable choice for AG.
Nonetheless, the debate around Mukasey's nomination in the press and for most other senators has focused on Mukasey's equally wrong stance on whether or not waterboarding is torture. Mukasey's refusal to call waterboarding torture is likely a political statement and not an ideological one -- for if he declares waterboarding torture, it will mean that the Bush administration has, in fact, committed torture according their Attorney General. That's not an acceptable political option for the Bush administration, hence the waffling and evasions from Mukasey on waterboarding.
As long as the debate is taking place around Mukasey's stance on waterboarding, it's important that we be crystal clear: wateboarding is torture. First, a group of four high ranking retired JAGs have written a letter to Senator Patrick Leahy to make clear that waterboarding constitutes torture. Crooks & Liars has a copy of the letter, which includes the following passage:
This is a critically important issue - but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture - no less than wanton killing - is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact - as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well-established legal principles applicable to this issue. This must end.
The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules yhat can be followed. In this instance, the relevant rule - the law - as long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation. [Emphasis added]
Second, in today's Washington Post, Evan Wallach, a retired JAG officer, goes through the history of prosecutions both in the US and in war crime tribunals for people who waterboarded prisoners. He writes:
The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.
...
We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be.
Could the case be any more clear? From a moral, legal, philosophical, and historical level waterboarding is torture and it must not be allowed. It is not who we are. And we need leadership in America that has the courage to stand up for what is right, even when it might not be popular. That's what Senator Dodd is doing now and that's what President Dodd will do come January, 2009.
Comments
I was a county coordinator for Obama in 2004. I will be voting for Sen. Dodd in the Illinois primary because he, more than any other candidate, is actually standing-up to defend the Constitution. If he would like a large primary boost by true progressives and patriots, he should filibuster the Mukasey nomination. It's the moral/right thing to do.
I second Mark's call for a filibuster. I would go so far as to say that a good part of any floor speech during the filibuster would be to point out the various international treaties and conventions banning torture to which the United States is a signatory. Simply put, the argument should be put forth that a vote to confirm Muskasey is a vote to engage in war crimes.
Dodd has Bush do these things. He had an ambassador fired and got waivers for countries with coups and military juntas. Bush is supposed to be a lame duck, but Dodd has no term limits.
I hope that Chris Dodd will lead a filibuster of Mukasey's nomination. A nominee who believes that the President operates above the law, and can not be punished for doing so, is not fit to hold the office of AG. Better to have a toothless acting AG for the remainder of Bush's administration than one who subscribes to the Unitary Executive theory of Presidential power.