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:
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.
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.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.
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."
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.
Ouch.
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.
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.).
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 "
BushHillary" 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 ....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.
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.
Right. I'm *sure* that's what Orin Kerr's position is. He being a notorious left-winger and all that.
That's how you pressure another institution.
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.
Is that not its prerogative?
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.
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
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.
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.
Name them, please, or failing that, please explain whether the practice of torturing prisoners is one of those "certain powers."
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.
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.
I should add that I think that your comment is "absurd" because you are clearly overstating Bush's argument.
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.
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.
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.
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.
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?
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.
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.
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?
Washington Post:
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.
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.
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.
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.
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?
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.
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.)
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.
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.
Ding, ding, ding! We have a Godwin's Law winner!
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.
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
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.
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.
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.
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”).
If congress believes that the president is substantially failing to faithfully enforce the law, they should start an impeachment investigation.
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.
Or maybe they don't have the votes to do it. Or maybe, some in Congress actually feel that torture may occasionally be justified.
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.
I, of course, said the exact opposite.
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.
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.
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.
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.
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?
.
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.
Have you seen Mart Lederman's arguments on the legality of waterboarding over at Balkinization? Here is a good place to start.
So much for that.
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.
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.
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.
I'm a bit confused. First you write:Then, when I ask you to explain your position, you decline, writing: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.
.
I'll concede that Mukasey may not garner more than 42 NAY votes, but I think he's in contention for the record.
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.
[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?]
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.
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.
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.
.
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."
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.)
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!'
There are also several comments in the following vein: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."
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.
r gould-saltman
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.
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.
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?
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.
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.
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.
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.
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.
Indeed. Thanks for the quote!
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.
Fair enough:
There's a definition of American style waterboarding from a former SERE instructor. He also says that waterboarding is torture. Any questions?
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.)
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.
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.
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.
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.
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.
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.
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.
"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.
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.
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.
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.
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.
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.
Would the President be justified in reconstituting Auschwitz on American soil if in his view (unchecked by Courts and Congress) it was necessary?
If only.
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."
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"
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.
Well, *that* would certainly make for more entertaining Supreme Court opinions.
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.
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.
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.
It just gets better and better.
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?
Schumer &Feinstein, says TPM. Here's hoping they get afterlife seating next to Lieberman.
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?
That was a rhetorical question, right?
(And, to preempt my Republican friends, I can't resist: "Not until 2009!")
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?
Any clues?
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.
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.
I'll happily extend the same offer to you that I made to Scote above.
Orin
See TPM muckracker for details and statements...
http://www.tpmmuckraker.com/archives/004635.php
(sorry not good at linking)
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.
"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."
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?
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.
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.
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.)
For 1, the question asked of me was:
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:
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:
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.
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.)
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.
"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?
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.
(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.
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 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.
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.
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.
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.
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.
"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.
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.
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.
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.
[PS- Bob, you were indeed prescient. Good call.]
notsufficiently defined the law...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
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.
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.
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.
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.
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.
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?
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.
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.
As for waterboarding, an organ -- the lungs -- does fail (at least temporarily). That's rather the point.
Why? I don't know of any cases at all construing this statute. What does that instruct?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
.
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.
The relevant parts of 18 U.S.C. § 2340 are as follows:
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?
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?
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.
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.
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.
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.
Part 1 -- http://pegc.us/archive/Articles/
Part 2 -- wallach_drop_by_drop_draft_20061016.pdf
Enjoy.
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.
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.
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.
Here's the article's synopsis:
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:
Humans have an inherent capacity for evil, and an inherent capacity to cleverly rationalize evil. America is sliding into that same ancient swamp.
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?
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."
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:
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:
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.
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.
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.
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:
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.
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).
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.
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
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.
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.
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: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.