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. H