Chris Dodd for President

Anonymous Liberal, in a larger post rejecting arguments that are being used by Bush administration supporters to paper over the pernicious nature of waterboarding, writes:

And finally, as a general conceptual matter, torture is not something that can be "simulated." It's not a flight on an airplane. There's no such thing as simulated pain and suffering. That this even needs to be explained to anyone old enough to read and write is absolutely astounding.

This is an incredibly important point. Those who have contended that waterboarding is not torture do so in part on the grounds that it is "simulated torture" or "simulated drowning." Anonymous Liberal's post clearly rebuts these sophistical claims. Once these claims are rebutted and we recognize unequivocally that there is no such thing as "simulated torture", anything that its defenders would have placed into that category must again "shock the conscience."

As you listen to the Bush administration's spokespeople or Republicans touting Michael Mukasey's nomination or conservative pundits like John Podhoretz blur the meaning of torture, remember that waterboarding is torture and as A.L. writes, you can't simulate pain and suffering.

Hartford Courant columnist Colin McEnroe's piece from yesterday contextualizes the dramatic shift from the time when America that didn't torture, that was beyond reproach for behavior that struck against human consciousness to now, when our administration defines torture down and clear instances of abuse are explained away with a chimera of national security. McEnroe writes of the way it used to be:

I don't remember when, as a kid, I first comprehended the idea of torture. But it was a tale told, always, about the Other. Nazis, Japs, Viet Cong. Do you know what they do to their captives? The Emperor Ming had Buck Rogers strapped to a board. James Bond would get loose before SPECTRE could torture him.

The very word "atrocity" had kind of a foreign ring. Atrocities. They do those over there. Later it was El Salvadoran death squads and SAVAK.

Much of our identity as Americans comes from the clear moral stances arising from our leadership at Nuremberg and through the Marshall Plan, when we as a nation made commitments to the rule of law that set the tone for how we expect all people to act towards each other. McEnroe looks at the Bush years and specifically the ongoing debate about what constitutes torture and whether we can raise the bar on torture high enough to say (straight faced or not) that America does not torture. He reminds us that we don't have to acquiesce to this immoral, anti-constitutional slouch the Bush administration and their cohorts in the Republican Party are leading us towards.

I'm 53 now. I'm the American Dad, with his mouth hanging open while the people who run this country try to convince us it's OK to be monsters, just because we're fighting monsters.

It's not. Bush, Cheney and the willing souls they have enlisted ... these people are not especially American. They would have functioned pretty well in the Gestapo, the Japanese Kempeitai, the Salvadoran paramilitary, the Khmer Rouge. They would have found pretty good jobs with the shah of Iran or with Pinochet, and they wouldn't have had to change much of their thinking. The enemy is bad, and you do what it takes to preserve yourself against them. No principle, no law trumps that.

Do you think that way, too? Or are you with me and Nance and Armitage? As I said, I'm 53. My snow fort is gone. But somebody stuffed my boyhood head with ideas about freedom, justice, equal protection under the law, inalienable rights, honor. And those ideas still light up, faintly, like the remembered fireflies of hide-and-seek on Wells Road. Those ideas are my American glow.

This is key. Not only is the behavior espoused, protected, hidden, and reaffirmed in secret by the Bush administration wrong, it's un-American. Standing up to it takes nothing more than the recognition that we are moving in a direction that fundamentally changes who we are. The rights and protections enshrined in the Constitution are our nation's DNA. Allowing it to be altered risks fundamentally blocking the chances of America returning to the position of moral leadership of McEnroe's youth. But standing up now and saying "no" to torture, "no" to lawlessness, "no" to excusing illegal behavior, we can defend our Constitution and rally to the side of the rule of law. That means opposing retroactive immunity, voting against Michael Mukasey's nomination for attorney general, and reversing the Military Commissions Act. That's what Senator Dodd is doing now in the Senate. And that's why if Dodd is elected, we'll have a President who will honor the Constitution.

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.

Senator Dodd has an op-ed online today in the Huffington Post, titled "The Questions I Wish We Were Asked." Senator Dodd takes the time in this column to answer questions about his opposition to retroactive immunity, whether he thinks waterboarding is torture, and why he objects to Michael Mukasey's nomination for Attorney General. None of these critically important and widely covered topics were addressed to any of the candidates in Tuesday night's Democratic debate...but now you have Dodd's answers!

Click "Read More" to find Senator Dodd's Huffington Post piece below the fold...

Today's NY Times article on the status of the Mukasey nomination discusses the perceived risks for Mr. Mukasey to correct his previous testimony and say that he believes waterboarding is torture. Unfortunately the article perpetuates a false and harmful notion: that stringent recognition of what constitutes torture will make it easier to prosecute the individual interrogators who used the method. That couldn't be further from the truth.

If torture was approved - by waterboarding or other methods - the primary target of any prosecution should be the individuals who authorized this illegal activity, not those who performed it. Where does the buck stop? Not, I'd think, with the individuals who were following orders, but the ones who were giving orders. No one should be excused for illegal activities, but to focus a refusal to state that waterboarding is torture on protecting CIA operatives is simply misdirection. Jack Balkin points out that these CIA agents don't have to worry about prosecution for following orders:

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law.

Of course, Balkin goes on, the real danger of Mukasey saying waterboarding is torture is that it puts the administration in a bad position politically. "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." That puts him in a tough spot: speak honestly about what constitutes torture and risk losing his favor as the Bush administration's pick for AG, or continue to deny that waterboarding is torture and face serious opposition to his confirmation.

This is not about Mr. Mukasey's career path. Nor is it about spurious worries of prosecuting American CIA operatives in American courts. The debate about waterboarding is about who we are as a country, what values we stand by, and the necessity of the American government to stand by the rule of law. Waterboarding is torture and sadly, it's time for Mr. Mukasey and the Bush administration to talk honestly about the fact that this government has tortured prisoners.