Senators Schumer and Feinstein both think we can do no better than Mukasey under Bush. A resigned Feinstein declared, “Judge Mukasey is the best nominee we are going to get from this administration.” There is no justification for the Senate setting its expectations so low. A senator should evaluate a nominee on his or her merits, not on who the president might or might not send next. Besides, and most importantly, Schumer and Feinstein missed the big picture.

Here is why Mukasey’s nomination presents the biggest chance in years to stop the U.S. torture program:

The risk of criminal liability is the only thing that has put the brakes on the U.S. torture program to any serious degree. After the Supreme Court applied Geneva Common Article 3 protections to the “war on terrorism” detainees in Hamdan (June 2006), the resulting risk of war crimes liability for violators of Geneva (see War Crimes Act) single-handedly did what nothing previously had been able to do: it shut down the CIA secret prisons. Nervous CIA interrogators, fearing prosecution, refused to go on with the program. Unfortunately, the shutdown lasted less than a month, however, because Congress unforgivably caved during election season in September 2006, and rewarded President Bush with the Military Commissions Act of 2006, a rather remarkable response to Bush’s then recent public acknowledgement that the U.S. had been disappearing detainees into secret prisons and torturing them. (Acknowledged with somewhat less accurate vocabulary). The Military Commissions Act of 2006, with its decriminalization of non-grave breaches of the Geneva Conventions (quite possibly the functional equivalent of an illegal amnesty, but that’s for another post) and its allotment of interpretive authority of Geneva to the president, made the Bush administration and the CIA personnel feel secure enough to reopen their secret prisons.

Throughout the episode, fear of criminal prosecution, or lack thereof, was the key. Jack Goldsmith, former head of the OLC, discusses in The Terror Presidency how Addington, Gonzales, and others have always been obsessed with the possibility of facing criminal prosecutions for torture. So much so, that Rumsfeld would talk about the need to combat “lawfare,” a term he took from the writings on universal jurisdiction of Air Force Brigadier General Charles Dunlap. If there’s been one reliable anti-torture motivator in the Bush administration, it’s been the criminal law. Proverbial flows of potential criminal liability have been accompanied by ebbs of the U.S. torture program.

Fastfoward to Mukasey. The frontpage New York Times story from November 1, 2007, marked the start of the first major public discussion of the Bush administration’s potential criminal liability for torture since Hamdan. This because the post-Hamdan discussion was flawed, the mainstream media buying into the administration’s spin, in which it raised the specter of Democratic witch-hunts of “well-meaning” CIA interrogators, who had but laid a gentle finger upon detainees. The Bush administration used this specter to railroad the Military Commissions Act through Congress, and then to interpret it how they saw fit.

But Congress shouldn’t have fallen for the act. Politically, no U.S. prosecutor would go after the CIA unless real cases were involved. If those cases arise, then they deserve to be investigated. Either way, as commentators like Prof. Jack Balkin have noted, the CIA agents then as now may have a defense under U.S. law to prosecution since they seem to have ostensibly relied on official readings of the law (OLC opinions) for their actions. A note of caution to would-be CIA torturers, however: as Jack Goldsmith points out in his book, that reliance must be reasonable, and reliance on clearly flawed opinions would not count, and some of the torture memos might meet this standard. Also, under international law, such a defense would almost definitely not be admitted anyway, so universal jurisdiction cases would still threaten.

Regardless, this story has always really been about the criminals in the White House rather than those in the CIA Salt Pits of Afghanistan or elsewhere. Both are guilty of torture, but it is the former that are now scrambling to cover their behinds in the Mukasey debate. Why? Because the Mukasey debate is different than the Hamdan one. This time, the story has spun out of the Bush administration’s control. Waterboarding is the issue, and it is so clearly torture, and torture is criminal, and conspiracy to commit torture is criminal (as Senator Cardin told Mukasey), and everybody knows these days that Bush and Co. ordered it nonetheless.

If there were ten votes (Democratic or otherwise) against Mukasey in Committee, not only would that block the nomination, it would demonstrate that Congress is serious about calling the CIA’s methods criminal. Faced with a “no” vote, Bush would have to either recess appoint Mukasey or subject another person to a confirmation proceeding, in which they would certainly be asked the same questions on waterboarding, war crimes, and the like (i.e. the Bush nightmare: the creation of an anti-torture litmus test). Any new nominee would either have to accept that the Bush administration is seemingly liable for conspiracy to commit torture, or face the Senate’s big “no.” Democracy at work! Checks and balances! Fancy that.

The message sent to federal prosecutors, the administration, and the public would be loud and clear: there will be no more torture without accountability. This would an immediate chilling effect on U.S. torturers everywhere, even if investigations and prosecutions never panned out.

The waterboarding question has temporarily put the Democrats in a position to checkmate the administration on torture. Without an attorney general to rubber stamp their torture program—or with only a de-legitimated recess-appointed one—the Bush administration would have had to move to Plan C: mass presidential torture pardons when shamefully bowing out of office. (Don’t rule that out, by the way. In fact, expect no less).

Had Schumer and Feinstein stood strong, perhaps the CIA would have gotten the jitters again à la Hamdan, and the secret prisons might have closed once more. But alas, Schumer and Feinstein not only lack principle, apparently they lack tactical thinking. Never throw away a checkmate that stares you in the face.

The loss entailed by Schumer’s and Feinstein’s decisions is much greater than that of a mere augmentation of torture apology in the echo chamber of the national security discourse. The Mukasey confirmation was the best chance that has come up in years stop the U.S. torture policy. Perhaps today, as the torture survivors who are planning to attend the confirmations look on, Schumer and Feinstein will have the courage, and the brains, to change their minds and vote to stop torture.

One thing is for certain: they may think Mukasey is the best they will get, but Schumer and Feinstein are not the best we will get. We will demand more, and we will work to boycott their fundraising efforts and remember to vote them out of office at the next opportunity. In the meantime, they should be ashamed, and they should be shamed. The demonstration outside Congress today and the protest gathered outside Schumer’s New York City office in silent vigil to deliver written testimonies of waterboarding survivors to his staffers show that we will not let them forget their complicity.

***

CURRENT TALLY

• In Favor of Moral & Legal Ambiguity on Torture
  • Schumer (NY)
  • Feinstein (CA)

• Opposed to Mukasey and Torture
  • Whitehouse (RI)
  • Biden (DE)
  • Durbin (IL)
  • Kennedy (MA)
  • Leahy (VT)
  • Feingold (WI)
  • Cardin (MD)
  • Kohl (WI)

Note: Since the Senate Judiciary Republicans are all expected to vote for Mukasey, even the ones who theoretically are against torture (e.g. Specter and Graham), we count here only Senate Judiciary Democrats, the members of that oh so disappointing party.

Today, the Guardian, a British newspaper reports: “The top legal adviser within the US state department, who counsels the secretary of state, Condoleezza Rice, on international law, has declined to rule out the use of the interrogation technique known as waterboarding even if it were applied by foreign intelligence services on US citizens. John Bellinger refused to denounce the technique, which has been condemned by human rights groups as a form of torture, during a debate on the Bush administration’s stance on international law held by Guardian America, the Guardian’s US website. He said he would not include or exclude any technique without first considering whether it violated the convention on torture.” (emphasis added).

If this is not a wake up call for U.S. citizens, nothing is.  Talk about national security.  Do you feel safer?

There is still time.  Demand that the Senate vote down Mukasey.

Senators Schumer (NY) and Feinstein (CA) have decided to sell out to torture and back Mukasey for attorney general, the AP has reported. This ensures Mukasey has the votes to pass the Senate Judiciary Committee and go to the full Senate floor, where he is widely expected to be confirmed.

One wonders what benefits the Democrats ever gain from standing by their party. Schumer and Feinstein deserve to be boycotted at the next elections. That might teach them what “voting with your conscience” means.

Of course, a lone senator could still pull through and serve as the national conscience. Leahy could hold the nomination in committee indefinitely, for example. Or a senator could put a “hold” on Mukasey’s nomination. For instance, Durbin has a hold on the nomination of Steven Bradbury, author of the new torture memos. Senate majority leader Harry Reid could also refuse to schedule Mukasey’s vote. Perhaps, a senator could even filibuster.

There are ways for a single senator with a shocked conscience to stop this train, but we do not have much hope in that. As a nation, we have sold out to torture yet again. When will we ever stop?

“Let us realize the arc of the moral universe is long, but it bends toward justice.” – Martin Luther King Jr.

From the Harvard Law Student Advocates for Human Rights:

**PLEASE READ, CALL YOUR SENATOR, AND FORWARD** Key states: NY, CA, WI, & MD

“The reason we don’t have an attorney general…is because the last one broke the law, and this one refuses to say torture is torture.” –Richard Clarke, former U.S. counterterrorism chief, speech before the Massachusetts Bar Association (Nov. 1, 2007)

Dear Friends,

Michael Mukasey, the man who wants to be our next attorney general, refuses to say that waterboarding is torture. Waterboarding dates from the time of the Spanish Inquisition. It is an ancient torture technique of repeated partial drowning. Water is forced into the prisoner’s lungs until he or she nears the point of death by drowning. The prisoners are then pulled back from the brink — usually. Waterboarding is torture, and torture is unconstitutional. All four of the top lawyers in the military unequivocally agree (see links at the bottom).

We need your help. Please take 30 seconds today to call your senators today and tell them to vote “NO” on Mukasey’s confirmation as attorney general [see senate phone numbers below]. The vote is on Tuesday, so please call your senators now! Without exaggeration, this is the best chance in years to take a stand against torture.

Senators from the key states of New York, California, Wisconsin, and Maryland are undecided.

The stakes are high — the Senate can stop Mukasey’s nomination. But if the Senate fails to act, it may well do the opposite, tacitly endorsing the use of waterboarding and other forms of torture. At Mukasey’s confirmation hearing, Sen. Richard Durbin, (D-IL), explained to Mukasey that the United States has prosecuted waterboarding as a war crime for more than a century. But Mukasey wouldn’t budge. This country cannot stand for yet another attorney general who doesn’t know right from wrong, who can’t state clearly what the laws and history of this country already make clear, who will not renounce torture.

Just two weeks ago, Mukasey’s confirmation looked like a sure thing. But his refusal to say whether waterboarding is torture has cast a dark shadow on his prospects. This turnaround was possible thanks to the pressure of voters like you. Since then, senators from both parties have called on Mukasey to clarify his position, but he has clung to an evasive answer. In a written response, Mukasey dismissed the controversy as “academic” and with “scant practical effect or value.” [For more information about waterboarding, its reported use by the U.S., and Mukasey’s letter on it, please see the links at the end of this e-mail].

The Senate Judiciary Committee is scheduled to vote on sending Mukasey’s nomination to the full Senate this Tuesday, Nov. 6. But if the Committee votes “NO” on Mukasey, his nomination to the post of attorney general will likely fail.

Please take 30 seconds today to call your senators and tell them to vote “NO” on Mukasey’s confirmation.

Thank you for your help and for taking a stand against torture.

SAMPLE TEXT OF WHAT TO TELL YOUR SENATE STAFF:

[Note: Mukasey’s name is pronounced “mew-CASEY.”]
1. Good morning/afternoon.

2. My name is ______________________.

3. I am a [optional: affiliation/occupation] and a constituent of Senator ____________.

4. I live at [your full address with ZIP — this information is very important to show that you are a voter—they do not use your address for anything else or pass it on ].

5. I’m calling to urge the senator to vote “NO” on Michael Mukasey’s confirmation as attorney general because I’m concerned about the issue of torture.

6. Waterboarding is torture, and it is a crime. If Mr. Mukasey can’t say that, he shouldn’t be attorney general.

7. The senator must not endorse Mr. Mukasey’s views on waterboarding by supporting his confirmation.

8. Thank you for your time.

—

KEY SENATORS ON THE ISSUE (these are members of the Senate Judiciary Committee who are undecided/swing voters)

* New York — Sen. Schumer (D) — (202) 224-6542 [*KEY*]

* California — Sen. Feinstein (D) — (202) 224-3841 [*KEY*]

* Wisconsin — Sen. Kohl (D) — (202) 224-5653

* Maryland — Sen. Cardin (D) — (202) 224-4524

* Wisconsin — Sen. Feingold (D) — (202) 224-5323

* Pennsylvania — Sen. Specter (R) — (202) 224-4254

* South Carolina — Sen. Graham (R) — (202) 224-5972

—
SENATORS WHO HAVE SAID THEY WILL VOTE AGAINST MUKASEY (please call them, thank them for their support, and urge them to filibuster if necessary)

* Vermont — Sen. Leahy (D) — (202) 224-4242

* Delaware– Sen. Biden (D) — (202) 224-5042

* Illinois– Sen. Durbin (D) — (202) 224-2152

* Massachusetts — Sen. Kennedy (D) –– (202) 224-4543

* Rhode Island — Sen. Whitehouse (D) –– (202) 224-2921

—
FOR ALL OTHER SENATORS

Please see the single-page Senate directory: http://www.senate.gov/general/resources/pdf/senators_phone_list.pdf

—
ADDITIONAL INFORMATION ABOUT WATERBOARDING, ITS USE BY THE U.S., AND MUKASEY’S WRITTEN RESPONSES

Harvard Law School faculty letter to the Senate Judiciary Committee on waterboarding:
http://blogs.law.harvard.edu/stoptorture/files/2007/10/harvard-human-rights-letter-and-question-for-senate.pdf

New York Times frontpage coverage on the waterboarding controversy, Nov. 1, 2007: http://www.nytimes.com/2007/11/01/washington/01mukasey.html?ref=washington

Michael Mukasey’s response to Senate Judiciary Committee Democrats:
http://www.nytimes.com/packages/pdf/national/20071031_Mukasey.pdf

Human rights groups’ letter explaining that all four of the top lawyers in the military unequivocally agree that waterboarding is torture: http://www.humanrightsfirst.info/pdf/071101-etn-mukasey-oppo-let.pdf

GET THIS URGENT ACTION IN DOC.

Questions about torture and war crimes prosecutions of U.S. officials have begun to surface around the debate on Michael Mukasey. The stakes were raised again in the Mukasey confirmation process when Senator Cardin submitted a single page of questions for Mukasey asking him whether he would, as Attorney General, order the Justice Department to prosecute those who have committed torture or have conspired to commit torture. Other written questions from senators also raise the possibility of criminal liability for U.S. officials, including:

1) “Is waterboarding torture?” sent by Senator Kennedy; and

2) [Ed.: heavily paraphrased]: “Do you agree with Senator Warner—primary author of the Military Commissions Act of 2006—that waterboarding and several other techniques are ‘clearly prohibited’ ‘grave breaches’ of Common Article 3 of the Geneva Conventions [Ed.: thereby making them war crimes under the War Crimes Act] that Congress intended to criminalize?” submitted by Senator Biden.

What makes Water(boarding)gate a scandal waiting to happen?

1) Waterboarding is the most brutal form of torture that the Bush administration has failed to disavow.

2) The administration has secretly authorized waterboarding at the highest levels of the Justice Department and possibly even the Oval Office.

3) Waterboarding has reportedly been practiced by U.S. agents within the past six years.

4) Torture is a U.S. federal crime and an international crime. In the context of wars, torture is a war crime under domestic and international law.

Therefore:

5) If Mukasey admits, as any honest lawyer must, that waterboarding is illegal, he—who is potentially the next Attorney General and would therefore be head prosecutor in the U.S.—would seemingly be conceding the possibility of very serious criminal liability for a large number of low-level and high-level U.S. officials, including cabinet members and potentially even the President and Vice President.

Mukasey himself has acknowledged his overaching concern over subjecting U.S. officials to criminal and other liability during his confirmation hearings. Asked by Senator Durbin at day two of his confirmation hearings about the legality of waterboarding and other torture techniques, Mukasey replied: “I don’t think that I can responsibly talk about any technique here, because of the very — I’m not going to discuss, and I should not — I’m sorry, I can’t discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar, when there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that” (emphasis added). Senator Durbin then reminded Mukasey, “This is not a congeniality contest.”

Indeed, congeniality is not the issue, accountability for torture is.

See also:

Water(boarding)gate Continues; Mukasey’s Confirmation Uncertain

Senators “Deeply Troubled” by Mukasey’s Refusal to Call Waterboarding Illegal

Dear Senate: Torture is Non-Negotiable

Harvard Law Faculty Letter Urges Senate to Call for Accountability on Waterboarding

The associated press is now reporting (Oct. 25) that Mukasey’s confirmation is uncertain. Both Senator Durbin and Leahy have said their confirmation votes depend upon Mukasey’s answers concerning waterboarding.  All ten Democrats on the Senate Judiciary Committee recently sent a letter to Mukasey asking him to answer whether waterboarding was illegal under U.S. law, including treaty obligations.  Other Senators, including Republicans such as Arlen Specter, are reportedly troubled too. Senator Specter also wrote Mukasey a letter asking for responses on a number of issues, including waterboarding.

Meanwhile, the legal ignorance appears to be contagious. Rudy Giuliani now says he doesn’t know whether waterboarding is torture, claiming “it depends on who does it,” among other astounding qualifications.