Impeach Mukasey Now: Waterboarding Not Torture According to Bush’s AG

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Crossposted at Daily Kos and Invictus

I know there is another diary on Mukasey and waterboarding up, by BarbinMD. I recommend it. But this is not a duplicate diary. It covers today’s hearing (still in process as I write), and calls for Mukasey’s impeachment, giving the reasons why. It also goes into some detail on the legal points involved.

Actually, what Michael B. Mukasey said today at his Senate oversight hearing was that waterboarding, under non-specific certain circumstances, is not torture. Of course, he couldn’t say that outright; he said in legalese. In the obscurity of U.S. law, torture is defined as something that “shocks the conscience.” And Mukasey, squirming before Sen. Dick Durbin’s questioning, feels that after extensive review, piles of documents and opinions, the question of waterboarding is — sometimes — “unresolved.”

Here’s some of the testimony between Durbin and Mukasey (thanks to Firedoglake):

Durbin: This chamber has voted on a bipartisan basis against torture.

MM: And the chamber voted down a prohibition on waterboarding.

Durbin: If the detainee treatment act is clear, and even went so far as to offer amnesty to employees of the govt, you still think that the jury’s out on whether the Senate believes that waterboarding is torture.

[Lots of long silences on Mukasey’s part.]

MM: The question is whether the Senate has spoken clearly enough on that issue.

Durbin: Where’s the lack of clarity in the McCain legislation?

MM: Words that are general, words that people on both sides of the debate have already disagreed. To point to this language or that language is to pick nits.

Durbin: As the Chairman has noted here, McCain, Warner, and Graham, lead sponsors of this legislation, have said waterboarding is a war crime.

Durbin: Standard so far has depended on circumstances. Do you see a problem with your ambivalence. It’s due caution.

[mumble mumble mumble]

MM: Your second question. I said waterboarding would not shock the conscience. I described a situation where it would. So far as it would be, that was something put into place by the person who wrote the opinion. [Is this the Bradbury opinion??] The use of such techniques to discover information that was only historical information would not shock the conscience.

Durbin: if it would save many lives, would that shock the conscience. Under the military interrogation standards. They are not interested. You’re saying that when it comes to non-military, it is still unresolved.

MM: It is unresolved.

Unresolved? Mukasey — a lackey if there ever was one — means: we want to keep it “unresolved.” We need to do whatever we want. We embrace legalistic loopholes. We embrace secrecy. And behind these practices, we will continue our reign of terror.

Oh, and by the way, for the social patriots among my readers, AG Mukasey can’t even say whether waterboarding a U.S. citizen is illegal, i.e., it’s open season on everybody now. (See the exchange between Mukasey and Senator Leahy here.)

Loopholes and Judicial Chicanery

If you want to fight torture, you better get a law degree. Because the battle against these inhuman practices, in a Kafkaesque irony meant to lull one’s putative victims to sleep, is reduced to legislative formulae and (endlessly) interpretable legalese. It starts by dividing torture into something called “torture” and something called “CID” (cruel, inhuman and degrading behavior). Then there are varying definitions: international, by treaty, Constitutional, by judicial precedent, etc.

“Shocks the conscience” is a criteria used to judge the existence of “CID” under U.S. law. In the UN Convention Against Torture (ratified by the U.S. in the 1990s), the U.S. listed an unprecedented number of “reservations” to the treaty, explaining under what conditions it would ratify. (The language was the creation of the Reagan administration, but left unchanged by Clinton, and subsequently written into much subsequent legislation, including the Military Commissions Act.)

One of the principle “reservations” to the UN CAN was a redefinition of CID as something to be interpreted under U.S. law. For those who aren’t savvy, that means using “shock the conscience” precedents in U.S. courts, rather than more stringent international standards. For the U.S., it meant greater freedom of action by executive agencies in planning and executing coercive interrogations.

Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to “shock the conscience” if it is perceived as manifestly and grossly unjust, typically by a judge…. In United States law which describes whether or not the due process requirement of the Fifth Amendment to the United States Constitution has been met. This term originally entered into case law with the decision for Rochin v. California (1953). This balancing test is often cited as having subsequently been used in a particularly subjective manner.

Mike Otterman explains how this dubious criteria has been used to weaken the standards by which a government cannot engage in torture or cruel, inhuman, degrading treatment of a prisoner. First, he quotes Assistant Attorney General William Moschella:

With respect to treatment of detainees by the United States Government… the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.”

The last clause is where the entire issue lies. If the behavior is therefore justified by any governmental interest, it’s (grave pause) legal. And guess who decided that? Well, Dick Cheney for one (from Otterman’s piece):

If it’s something that shocks the conscience, the court has agreed that crosses over the line.

Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that’s in the eye of the beholder. But I believe, and we think it’s important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it’s important for us to be able to have effective interrogation of these people when we capture them.

A Lawless Land

There is no more law in America. We have now only rule by an executive. The rest is pettifogging obfuscation to preoccupy the suckers, those not lucky enough, by birth, or by having morals enough not to steal great wealth, to occupy the tall towers of the power elite.

A Congress that cannot deal with such basic issues of human rights and decency is not only politically bankrupt, it is a serious menace to democracy and freedom. Because in their impotence and blustering, they are bringing the very idea of legislative representation and rule by elected represenatives into disrepute. This does not go unregistered abroad. Nor are the enemies of freedom at home unaware, and they are sharpening their long knives, for the final vivisection of the republic.

All must join — left, right, Democratic, Republican, the disaffected and the politically astute — and call for the ouster of this hated man, Michael B. Mukasey. That he is also carrying administration water for obstruction of justice on the U.S. attorneys investigation, and for immunity on FISA, only establishes a trifecta of lawlessness that must be addressed now.

The rot is spreading. The election is months away, but the damage is being done now.

Impeach Mukasey, Bush and Cheney!

Also posted at Invictus