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Waterboarding the Constitution: Mukasey and Bush's 2005 Signing Statement

November 6, 2007

As expected, the Senate Judiciary Committee voted 11-8 to send the nomination of Judge Michael Mukasey to the full Senate for confirmation as Attorney General. As the AP reports, Democrats Chuck Schumer (D-NY) and Dianne Feinstein (D-CA) provided the decisive votes after accepting "his assurance to enforce any law Congress might enact against waterboarding." Sadly for Schumer, Feinstein and the American people, Congress in 2005 already passed a law express forbidding waterboarding and other interrogation techniques amounting to torture. And President Bush already issued a signing statement declaring he would ignore it.
The two Democrats whose turnabout ensures the elevation of Mukasey to the top of the Justice Department each fell victim to Bush administration sophistry. Feinstein, who was also pivotal in the Judiciary Committee's approval of the reactionary Leslie Southwick, proclaimed her fear of Bush recess appointment for the AG post and his top lieutenants. "I don't believe a leaderless department," she said, "is in the best interests of the American people or of the department itself."
Schumer, of course, had trapped himself, having earlier recommended Mukasey. Hoping to give himself some wiggle room, Schumer in a New York Times op-ed on Tuesday titled "A Vote for Justice" explained:

"I understand and respect my colleagues who believe that Judge Mukasey's view on torture should trump all other considerations. For the Senate to make a bold declaration about torture and waterboarding by rejecting him is appealing. But if we block Judge Mukasey’s nomination and then learn in six months that waterboarding has continued unabated, that victory will seem much less valuable."

That train, unfortunately, has left the station. Mukasey's verbal gymnastics were designed not only to evade the fundamental question as to whether or not waterboarding is torture, but to ensure that he as Attorney General would not have to potentially prosecute members of the Bush administration as a result. (As I wrote last month, his predecessor Alberto Gonzales signed two secret memos in 2005 which "provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.") That any future prohibitions Congress might pass would constrain this president is also nonsensical on its face. As Committee Chairman Pat Leahy (D-VT) remarked this morning:

"Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this president."

But it won't come to that, because it already has come to that.
In December 2005, Congress passed and President Bush signed the Detainee Treatment Act, including the McCain amendment which barred "cruel, inhuman, and degrading treatment." President Bush then issued a signing statement for a law he made clear he had every intention of continuing to violate.
Bush, of course, had opposed John McCain's torture bill throughout the fall of 2005. But when the House and Senate passed McCain's amendment to the defense authorization bill by veto proof margins, Bush held a press conference on December 15 with McCain, announcing his support for the language explicitly saying that the cruel, inhuman, and degrading treatment of detainees in US custody is illegal regardless of where they are held.
As the Boston Globe reported, that supposed compromise lasted just as long as it took for President Bush to issue his signing statement two weeks later on December 30. When it comes to what constitutes "cruel, inhuman, and degrading treatment of detainees," the President proclaimed that he indeed would be the decider:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Michael Mukasey's "torture is hypothetical" dodge during the confirmation process guarantees that the White House's regime of detainee torture put in place by Alberto Gonzales' secret memos, his own perjury to the Senate and President Bush's signing statement will continue uninterrupted. Senator Schumer's rationale for his vote today is, as Nixon spokesman Ron Nessen once pronounced, "no longer operative."

"No one questions that Judge Mukasey would do much to remove the stench of politics from the Justice Department. I believe we should give him that chance."


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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