The Volokh Conspiracy

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:
  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.
  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."
  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.

  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.
Anderson (mail):
kind of a traditional view, I would think

Ouch.
11.2.2007 11:45am
PatHMV (mail) (www):
I disagree, Orin. As you note, Mukasey's not the problem. The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area. It's entirely appropriate for the President to announce that he's not going to send them a nominee whose views are different in this area.

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.
11.2.2007 11:53am
David M. Nieporent (www):
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.
This objection is absurd anyway. He's being asked to give his opinion, not to render a legal judgment. If he gives his opinion, and then when confirmed he gets briefed and new facts that he learns cause him to change his mind, what's the problem? Besides political embarrassment, I mean?
11.2.2007 11:54am
wm13:
Interesting, because when Congress invoked another rather clear constitutional power, the power to impeach for criminal activity, any number of lefty law professors were ready to pronounce it an unconstitutional seizure of power. So I guess the academy's position is that Congressional power is proper when used by Democrats against Republicans, but not vice versa.
11.2.2007 11:57am
PatHMV (mail) (www):
I mean, how is it really different for the Senate to decide, as a matter of policy, that it won't consent to nominees who don't share some Senators' view on waterboarding, than for the President to decide, as a matter of policy, that he won't nominate nominees who don't share the President's view on waterboarding?

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.).
11.2.2007 11:57am
Anderson (mail):
The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.

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 "Bush Hillary" 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 ....
11.2.2007 11:59am
Brooklynite (mail) (www):
You're misrepresenting what's going on, Pat.

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.
11.2.2007 12:02pm
Houston Lawyer:
And Hillary is being treated unfairly because she is a woman. I detest the whole whining nature this type of complaint, regardless of its source.

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.
11.2.2007 12:02pm
Anderson (mail):
So I guess the academy's position is that Congressional power is proper when used by Democrats against Republicans, but not vice versa.

Right. I'm *sure* that's what Orin Kerr's position is. He being a notorious left-winger and all that.
11.2.2007 12:02pm
Richard Aubrey (mail):
He gets to complain.
That's how you pressure another institution.
11.2.2007 12:04pm
Anderson (mail):
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.

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.
11.2.2007 12:05pm
CEB:

The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.

Is that not its prerogative?
11.2.2007 12:05pm
rarango (mail):
Gee--you mean there is a certain amount of partisan politics involved in confirmations" Shocked, I am, to hear that! Thats OK--all Bush has to do is appoint Mukasy as acting AG and both sides can claim victory and continue to beat each other up for their respective failures.
11.2.2007 12:05pm
Brett Bellmore:

The Senate wants to use the confirmation process to block any Attorney General who is willing to accept the President's policy in this area.


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.
11.2.2007 12:07pm
Horatio (mail):
Can you spell R-E-C-E-S-S A-P-P-O-I-N-T-M-E-N-T?

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
11.2.2007 12:07pm
Patrick Joy:
So the President can not complain that the Senate is blocking the nominee because he shares the same opinion the Senators hoold namely that Waterboarding is not illegal and the US does not torture? OK I think both the blocking and complaining is perfectly legitimate as part of the process.
11.2.2007 12:09pm
Ben P (mail):

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.


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.
11.2.2007 12:11pm
AnonLawStudent:
I'll second Pat's comment. I think it's clear that "unitary executive" means that cabinet officers should be viewed as agents (with all that term imports) of the President, and that certain powers are vested exclusively in the President (i.e. those powers can't be checked or regulated by Congress). Taking this view, it is not appropriate for the Senate to use a "check" to try and force the principal (the President) to accept an agent who disagrees with him in a significant manner. Mukasey is unquestionably qualified - he was approved by Chuck Schumer, after all - the only hold up is an unwillingness to commit to a position that might conflict with his principal.
11.2.2007 12:13pm
Thales (mail) (www):
President Bush has lost any credibility when it comes to claims of unfair treatment of his people. It is eminently reasonable to ask the nominee questions about how he will do his job, which includes enforcing and interpreting the law and counseling the President on same (e.g., in his capacity as head of the department that OLC is a part of). The same is true of judicial nominees and asking real questions about judicial philosophy and their views of past cases. Mukasey will leave his mark on DoJ as an institution long after Bush leaves office, and it's important to get it right. Fleshing out the prospective AG's views of the President's so-called inherent authority under Article II is important for all of us, regardless of who actually sits in the office of the President.
11.2.2007 12:14pm
PatHMV (mail) (www):
CEB and Brett Bellmore, I agree it is within the Senate's prerogative to do that. Where I disagree with Orin is his suggestion that it's not the President's prerogative to refuse to submit nominees who will bend to the Senate's will on that issue. In my first comment, my last paragraph was expressed unclearly. I should have said that I don't think that the Senate should refuse to confirm for those reasons, but it is certainly their legitimate prerogative to do so.

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.
11.2.2007 12:18pm
Guest101:
While I agree with Orin, this doesn't seem a politically wise fight for the Democrats to have picked to me. Mukasey is, by all accounts, a highly competent and qualified individual who would return a level of professionalism and integrity to the DOJ that it is sorely in need of at the moment. Moreover, he was something of a compromise nominee, much less of a lightning rod for partisan opposition than Olson or Chertoff would have been. Finally, the Democrats have to know that they're never going to get a nominee who's willing to say that the administration's current practices are illegal (and Bush would probably pull the nomination in a heartbeat if someone did), while all that I've heard about Mukasey suggests that he would be likely to work behind the scenes once confirmed as a more effective break on Bush's abuses than Gonzales or Ashcroft were (or than Olson or Chertoff would be). By picking this stupid fight the Democrats have put themselves in a situation where they can't back down without looking weak, Mukasey can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
11.2.2007 12:20pm
Anderson (mail):
and that certain powers are vested exclusively in the President (i.e. those powers can't be checked or regulated by Congress)

Name them, please, or failing that, please explain whether the practice of torturing prisoners is one of those "certain powers."
11.2.2007 12:23pm
Adam J:
AnonLawStudent- Interesting analysis, so you claim that your theory of constitutional law (unitary executive) trumps the explicit text of the Constitution (the appointment clause).
11.2.2007 12:28pm
D Palmer (mail):
Orin I am going to disagree with you here. It is very unfair of the Democrats to demand that Mukasey state a legal opinion when he doesn't have the facts in front of him.

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.
11.2.2007 12:32pm
Pon Raul:
Orin,

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.
11.2.2007 12:33pm
Badger (mail):
Flashback to 2004:

While I agree with Orin, this doesn't seem a politically wise fight for the Democrats to have picked to me. [Gonzales]is, by all accounts, a highly competent and qualified individual who would return a level of [moderation] and [open-mindedness] to the DOJ that it is sorely in need of at the moment. Moreover, he was something of a compromise nominee, much less of a lightning rod for partisan opposition than Olson or [Terwilliger] would have been. Finally, the Democrats have to know that they're never going to get a nominee who's willing to say that the administration's current practices are illegal (and Bush would probably pull the nomination in a heartbeat if someone did), while all that I've heard about [Gonzales] suggests that he would be likely to work behind the scenes once confirmed as a more effective break on Bush's abuses than Gonzales or Ashcroft [was](or than Olson or [Terwilleger] would be). By picking this stupid fight the Democrats have put themselves in a situation where they can't back down without looking weak, [Gonzales] can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
11.2.2007 12:34pm
Pon Raul:
Orin,

I should add that I think that your comment is "absurd" because you are clearly overstating Bush's argument.
11.2.2007 12:35pm
CDU (mail):
I agree with Horatio that a recess appointment is likely if the Senate doesn't confirm Mukasey. This kind of puts the Democrats in a pickle since whoever the President appoints will probably be someone much less acceptable to them and more politically beholden to the president than Mukasey. Even with the best intentions in the world, I don't think there's any way a recess appointment is going to be able to clean up the current mess in the DoJ as well as an Attorney General with congress' imprimatur.
11.2.2007 12:38pm
Guest101:
Badger,

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.
11.2.2007 12:40pm
TruePath (aka logicnazi) (mail) (www):
PatHMV:

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.
11.2.2007 12:43pm
Mikey:
I'd like to offer up two points.

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.
11.2.2007 12:45pm
Anderson (mail):
Orin I am going to disagree with you here. It is very unfair of the Democrats to demand that Mukasey state a legal opinion when he doesn't have the facts in front of him.

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.
11.2.2007 12:45pm
Anderson (mail):
If he says "No" or waffles (as he did), his nomination may die in committee. Either way, he can't give a "right" answer.

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?
11.2.2007 12:48pm
AnonLawStudent:
Anderson/Adam,

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.
11.2.2007 12:48pm
Floridan:
It seems to me that if Judge Mukasey will not disagree with the administration's position, he should just say so and let the chips fall where they may.

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.
11.2.2007 12:53pm
Mikey:

If he says "No" or waffles (as he did), his nomination may die in committee. Either way, he can't give a "right" answer.

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?


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?
11.2.2007 12:55pm
Badger (mail):
Associated Press:

"Even before the formal announcement, one Senate liberal welcomed the appointment of "someone less polarizing" to the position. "We will have to review his record very carefully, but I can tell you already he's a better candidate than John Ashcroft," said Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee."



Washington Post:

"The move also means that departing Attorney General John D. Ashcroft, a darling of the conservative movement, would be replaced with a figure viewed with some suspicion by the Republican right. By choosing loyalty over ideology in the first major personnel decision after his reelection, Bush signaled a desire for calmer and quieter times at Justice, officials said"
11.2.2007 12:56pm
Thoughtful (mail):
They should ask Mukasey if testifying before a Senate Committee constitutes torture...
11.2.2007 1:02pm
Floridan:
oops . . .should be "duties of the Attorney General's office."
11.2.2007 1:04pm
Guest101:
Badger,

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.
11.2.2007 1:06pm
scote (mail):
OK wrote:

I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.


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.
11.2.2007 1:08pm
Mark Field (mail):

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.


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.
11.2.2007 1:11pm
byomtov (mail):
However, he can't give a "right" answer to that question as far as those questioning him are concerned.

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.
11.2.2007 1:11pm
PLR:
As far as I'm concerned, anyone who refuses to answer perfectly legitimate questions in his or her appointment hearings deserves to be treated as having given the most unfavorable answer.

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?
11.2.2007 1:12pm
hattio1:
Ben P makes an excellent point (which was echoed by other commentaters);

Him refusing to take a position on whether or not waterboarding is torture shouldn't necessarily require inside knowledge of what's been done.

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.
11.2.2007 1:12pm
Frater Plotter:
Any nominee for Attorney General who fails to acknowledge that waterboarding is not torture either (a) is lying, or (b) doesn't understand one of the most important human-rights issues of the day. The first disqualifies that person from the position in question on moral grounds. The second disqualifies him or her on grounds of competence.

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.)
11.2.2007 1:15pm
CDU (mail):
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.


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.
11.2.2007 1:23pm
Anderson (mail):
it cannot prevent the President from taking actions that he believes necessary to the defend the nation

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.
11.2.2007 1:24pm
hattio1:
An earlier commenter stated that if Mukasey's nomination fails, Democrats will probably get someone they like less in a recess appointment. Is this really a good possiblity? It seems that if Bush appoints someone else via recess appointment, he's sort of admitting he only nominated Mukasey because of pressure from the Dems. It's also sort of admitting he didn't nominate the person who is most qualified.
11.2.2007 1:26pm
ronnie dobbs (mail):

Any nominee for Attorney General who fails to acknowledge that waterboarding is not torture either (a) is lying, or (b) doesn't understand one of the most important human-rights issues of the day. The first disqualifies that person from the position in question on moral grounds. The second disqualifies him or her on grounds of competence.

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.)


Ding, ding, ding! We have a Godwin's Law winner!
11.2.2007 1:28pm
CDU (mail):
This is not a matter of rendering a legal decision. It is a matter of rendering a moral decision


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.
11.2.2007 1:29pm
OrinKerr:
Scote,

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
11.2.2007 1:30pm
AnonLawStudent:
Mark Field,

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.
11.2.2007 1:31pm
hattio1:
CDU
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.
11.2.2007 1:33pm
ejo:
still no definition of torture, just your personal feelings? severe pain-seems not; prolonged and severe mental distress-arguable but it is alleged not too last long. has congress ever defined it as torture-no. have they had the opportunity to do so but not taken the leap-most definitely. has it been shown to be effective-anecdotally yes, perhaps its greatest sin.
11.2.2007 1:35pm
scote (mail):

Scote,

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


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.
11.2.2007 1:39pm
AnonLawStudent:
Anderson,

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”).
11.2.2007 1:40pm
SteveIL (mail) (www):
Here's my problem with all of this. The whole question revolves around whether or not waterboarding is torture and/or illegal. Congress could say that it is whenever they want, as part of their Article I powers to create legislation, and end the mystery. It is not in the Constitution that a nominee to become the Attorney General creates legislation.
11.2.2007 1:40pm
Laura S.:
Orin: Its called gaming the system. Yes the Congress can put pressure on the executive in this fashion but it is underhanded and dishonest.

If congress believes that the president is substantially failing to faithfully enforce the law, they should start an impeachment investigation.
11.2.2007 1:42pm
CDU (mail):
I'm not a lawyer, but from what I've read, opinions written by the Justice Department's Office of Legal Counsel do have legal weight. Government employees are protected from later criminal or civil liability if they acted within the bounds of an OLC opinion (which was why there was such a big brouhaha when Jack Goldsmith withdrew John Yoo's OLC opinion that contained an infamously narrow definition of torture). Mukasey may be concerned that this protection would be compromised if the Attorney General contradicts it, but since the opinions on torture and interrogation are secret, he can't even know if what he says contradicts them (forget Orwell, here comes Joseph Heller).

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.
11.2.2007 1:47pm
Kevin P. (mail):
So if waterboarding is so clearly torture, why doesn't Congress simply pass a law declaring it to be torture? That would be the end of the discussion.

Or maybe they don't have the votes to do it. Or maybe, some in Congress actually feel that torture may occasionally be justified.
11.2.2007 1:49pm
Brooklynite (mail) (www):
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.


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.
11.2.2007 1:49pm
Mark Field (mail):

you are correct that that the Constitution establishes a different standard for approval of treaties.


I, of course, said the exact opposite.


"[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.


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.


For starters, your quote from is focused on prevention of nepotism


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.


If we're going to start quoting Framers, why pick that particular Federalist over, say, George Washington


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.
11.2.2007 1:49pm
Unintended Consequences:
All of this umbrage over waterboarding will be forgotten much like the atrocities that U.S. Marines used to suppress the Philippine rebellions around the turn of the last century.

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.
11.2.2007 1:50pm
Mark Field (mail):

The whole question revolves around whether or not waterboarding is torture and/or illegal. Congress could say that it is whenever they want, as part of their Article I powers to create legislation, and end the mystery.


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?
11.2.2007 1:53pm
cboldt (mail):
The "legality" of waterboarding is a mixed bag. It depends on what one means by "illegal."

.

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.
11.2.2007 1:53pm
Zathras (mail):
Orin,

Have you seen Mart Lederman's arguments on the legality of waterboarding over at Balkinization? Here is a good place to start.
11.2.2007 1:53pm
Patrick216:
At the end of the day, Michelle Malkin's comment about this is on point. Specifically, she mentioned that Mukasey was picked over Ted Olson because Olson was too "controversial" and would have picked a fight with the Democrats on the Judiciary Committee. So the GOP went with the "safe" candidate, Mukasey, who was supposed to be a consensus candidate who would sail through.

So much for that.
11.2.2007 1:55pm
Zathras (mail):
As Marty quotes there,

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.
11.2.2007 1:55pm
Dave N (mail):
cboldt,

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.
11.2.2007 2:04pm
Anderson (mail):
Anon, your own case you quote does not support the notion that the President can act in contravention of Congress.

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.
11.2.2007 2:06pm
OrinKerr:
Scote,

I'm a bit confused. First you write:
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.
Then, when I ask you to explain your position, you decline, writing:
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.
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.
11.2.2007 2:07pm
CDU (mail):
From the articles I've read, the current consensus seems to be that Mukasey will get around 70 votes on the floor (much higher than Ashcroft, as Dave N points out). The problem lies in getting his nomination out of the Judiciary Committee. It looks like it's either going to be a party-line vote to reject him, or one or two Democrats will break ranks to send the nomination to the floor.
11.2.2007 2:09pm
cboldt (mail):
Re: Ashcroft confirmation vote: The vote wasn't 52-48, it was 58-42.

.

I'll concede that Mukasey may not garner more than 42 NAY votes, but I think he's in contention for the record.
11.2.2007 2:14pm
Anderson (mail):
Josh Marshall concurs with CDU on Mukasey's prospects, and finds it implausible that he won't get out of committee.
11.2.2007 2:15pm
AnonLawStudent:
Mark Field,

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.
11.2.2007 2:16pm
AntonK (mail):
Kent Scheidegger's argument simply outclasses Orin Kerr's:


In the constitutional system of checks and balances, the separation of powers is not total. The President exercises legislative power in the veto. The Senate exercises executive power in its advice and consent function. There are a few other examples. These checks on other branches' powers are important, but they should be used sparingly. The President should sign almost every bill Congress sends him, and historically he has. Similarly, the Senate should confirm the vast majority of nominees, and historically it has. Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function. Instead of asking whether the nominee thinks that general law X allows specific practice Y, Congress can and should pass a statute specifically governing Y. If the members concerned about Y can't pass the statute because they can't convince a majority of their colleagues of their position, then the nominee's views are not so far outside the mainstream as to justify not confirming him.


[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?]
11.2.2007 2:20pm
American Psikhushka (mail) (www):
What's the name of the most recent anti-torture law? Can someone please provide a link?

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.
11.2.2007 2:21pm
Dave N (mail):
cboldt,

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.
11.2.2007 2:25pm
Anderson (mail):
The Framers themselves weren't sure of it's meaning.

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.
11.2.2007 2:25pm
cboldt (mail):
I hadn't checked a primary source either ... until your post had me questioning my own prediction. At any rate, transposition is one of my favorite errors, as in "VIOLA! as if by magic."
.
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."
11.2.2007 2:29pm
Anderson (mail):
Leahy: no go on Mukasey.
11.2.2007 2:30pm
Evelyn M. Blaine (mail):
I find myself in agreement with much of AnonLawStudent's last post, although I disagree with the function his claim is supposed to play in his larger argument.

In fact, the "advice and consent" requirement was itself a compromise which, like many others, was left intentionally hazy. [ ... ] Again, the interpretation of the less than clear language is based largely on tradition.

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.)
11.2.2007 2:30pm
Jamesaust (mail):
"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."

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!'
11.2.2007 2:34pm
Smokey:
Guest101:
...Mukasey can't give them the reassurances that they demand, and the next nominee is almost sure to be worse.
Yep. But the Democrats are objecting to Mukasey for *ahem* the 'good of the country.' heh.

There are also several comments in the following vein:
...mind you, waterboarding is torture, no question about it.
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."
11.2.2007 2:34pm
ejo:
the japanese example was forcing a hose down the throat and stomping on the prisoner's belly-something different than even the wildest lefties allege here. I guess you'll have to define waterboarding now-given that you shrink from defining torture or, worse yet, define it in such a way that ratcheting the cuffs too tightly fits your definition, I won't hold my breath.
11.2.2007 2:35pm
Unintended Consequences:
Smokey,

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.
11.2.2007 2:44pm
Richard Gould-Saltman (mail):
I'll agree with Orin, and add my own slant GWB's pitch here, as in the press conference earlier this week on Congressional "delay" on S-CHIP and war funding, is now deep into petulance and whining, as opposed to any actual argument...

r gould-saltman
11.2.2007 2:44pm
Adam J:
AnonLawStudent- if the founders intended to limit the authority of the legislature to grant consent, they probably would mentioned it in the Constitution. All your obfuscation of original intent is unnecessary, the words could not be clearer. Advice and Consent means just what it says, the Executive must seek consent from the Senate for appointments, whom can grant or withhold it! There is not a single qualifier on how they can grant or withhold it- they simply can. If they do it for purely political reasons, the electorate can hold them accountable, but substantively there's nothing wrong with it. You seem to think the clause didn't really mean that they can withhold consent to check the executive. Your argument is completely specious, simply because original intent is unclear (as it always is), you seem to think we should ignore a plain reading and that the Senate should therefore defer to the Executive- a perverse result since the clause is clearly intent to check the Executive.
11.2.2007 2:49pm
e:
Military trainers do not cross certain lines like dismemberment, fingernail extraction, and substantial risk of hypothermia. They are allowed certain physical contact, limited by time and intensity. They waterboard our own citizens. Does this inform our view of what is torture?

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.
11.2.2007 3:00pm
Adam J:
Smokey- please provide authority for A) [waterboarding] totally harmless technique and b) [waterboarding] undoubtedly saves American lives.

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.
11.2.2007 3:01pm
American Psikhushka (mail) (www):
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.

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?
11.2.2007 3:03pm
AnonLawStudent:
Adam J.

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.
11.2.2007 3:09pm
American Psikhushka (mail) (www):
Smokey-

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.
11.2.2007 3:10pm
samuil (mail):
Obviously, Anton and Psichushka did not spend so much time in the USSR.
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.
11.2.2007 3:18pm
Evelyn M. Blaine (mail):
AnonLawStudent wrote:


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.


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.
11.2.2007 3:23pm
e:
American P - I think you misunderstand the type of waterboarding at issue here. From what I've read it is not a matter of someone with a stopwatch ensuring safety by limiting the time. Instead there is no risk of drowning. I've also seen no indication that interrogators have suffocated prisoners to the point of passing out, or used waterboarding as a repeated punishment in a prisoner's schedule.

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.
11.2.2007 3:25pm
Anderson (mail):
Needless to say, this history hardly supports the reading that "advice and consent" is intended to be deferential.

Indeed. Thanks for the quote!
11.2.2007 3:28pm
Mark Field (mail):

You seem awfully certain about the meaning of "advice and consent."


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.
11.2.2007 3:32pm
wm13:
I had forgotten about the Ashcroft nomination, mentioned above. Here's a guy with degrees from Yale and Chicago, a former governor and senator, and the overwhelming majority of Democrats in 2000 did not consider him qualified to be Attorney General. Can someone remind me again how Bush has been divisive?
11.2.2007 3:33pm
PC:
I guess you'll have to define waterboarding now


Fair enough:

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning.


There's a definition of American style waterboarding from a former SERE instructor. He also says that waterboarding is torture. Any questions?
11.2.2007 3:33pm
Bob from Ohio (mail):
Leahy saying no is a dog bites man story. He was never, never going to vote yes.

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.)
11.2.2007 3:37pm
Evelyn M. Blaine (mail):
AnonLawStudent wrote:


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.


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.
11.2.2007 3:38pm
Temp Guest (mail):
Bush's argument is no weaker or stronger than the arguments of those Senators who are preventing Mukasey from receiving an up or down vote in the Senate. The Senate as a body has the Constitutional right and obligation to "advise and consent". The Senate also has the Constitutional right and obligation to establish its own rules and procedures. The current facts are (1) that the rules and procedures of the Senate were originally devised for a deliberative legislative body,not an elected one whose members are now far more transient than the representatives working on the other side of Congress; (2) that the rules are maintained as if the myth of the deliberative nature of the Senate were still fact; (3) partisans have used these rules to highjack the "advise and consent" role of the Senate; and (4) if it came to an up-or-down vote on the Senate floor, as it should, Mukasey would win by an estimated 70 to 30 margin.
11.2.2007 3:38pm
AnonLawStudent:
Evenlyn - Thanks for the historical reference.

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.
11.2.2007 3:41pm
Evelyn M. Blaine (mail):
Mark Field:

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.
11.2.2007 3:42pm
Adam J:
AnonLawStudent- Wow, so basically your reply to it being clear is maybe it isn't clear? I'm not even interpreting anything! Apparently you think that because some parts of the Constitution are unclear we shouldn't attach the clear meaning to the parts that are clear. Consent means consent- congress has to consent in order for certain officers to be appointed. Lemme guess, next you want to argue that Congress doesn't really have the authority to declare war because some parts of the constitution are unclear!

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.
11.2.2007 3:44pm
Anderson (mail):
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

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.
11.2.2007 3:45pm
AnonLawStudent:
Anderson,

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.
11.2.2007 3:49pm
Adam J:
AnonLawStudent- no research is necessary- what power parliment had before 1689 has absolutely no persuasive value whatsoever.
11.2.2007 3:51pm
Mark Field (mail):

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.


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.
11.2.2007 3:52pm
PatHMV (mail) (www):
The clarification is helpful, Orin, thank you. But I still disagree with your conclusion.

"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.
11.2.2007 3:53pm
Evelyn M. Blaine (mail):
AnonLawStudent:


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”).


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.
11.2.2007 3:56pm
Anderson (mail):
Anon, you repeatedly produce things that you think are persuasive, but aren't.

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.
11.2.2007 3:56pm
Anderson (mail):
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.

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