The Mukasey Precedent


If you want to see how the pro-torture right will use Feinstein's and Schumer's capitulation on the rule of law to advance the torture program, read Rich Lowry:

The Senate had a chance to settle the question in September 2006 when Sen. Ted Kennedy offered an amendment to declare waterboarding and other coercive interrogation techniques a violation of Common Article 3 of the Geneva Conventions. His amendment lost 46-53. So Senate Democrats are now demanding that Mukasey declare waterboarding a violation of Common Article 3 when the Senate declined to do the same just a year ago.

The current Republican standard is that if the Congress does not explicitly forbid specific torture techniques as illegal, then they're legal. They hold that the clear and broad legal standard - "severe mental or physical pain or suffering" - is too broad and too clear to accommodate what a handful of men, i.e. Bush, Cheney, Rumsfeld, Addington, et al. want to do with prisoners under their control.

Even though waterboarding has always been regarded as torture and is illegal under any meaningful understanding of English; even though the United States prosecuted Nazis as war criminals for performing exactly the same torture techniques now authorized by the United States under the rubric of "enhanced interrogation"; even though the United States has court-martialed soldiers for doing what the president has authorized; unless the specific techniques are entered explicitly into the law, according to Lowry, the Geneva Conventions and settled law don't apply. And so any vote for Mukasey will now be interpreted by torture advocates like Lowry and Bush administration officials as legal support for torture. Here's Lowry's proof:

If waterboarding is torture, whoever has authorized and conducted this training should -- as a strict matter of the law -- be vulnerable to war-crimes prosecutions... If the Senate disagrees [with allowing the president to waterboard prisoners], it should put itself clearly on record forbidding waterboarding. Otherwise, it should confirm Mukasey as the careful legal mind he has shown himself to be throughout his career and during this controversy.

See? This is how they keep pumping the poison of torture into the American constitution. And so a new precedent will be set; and the torture program, already well-established, will further entrench itself into US law and practices. The current law is not in any way mysterious.

Schumer's promise that the Congress will now pass a law specifically banning verschaerfte Vernehmung, to use the Gestapo's name for the Bush-Cheney techniques, is insufficient. It presupposes that the torture techniques described are not already illegal, thus retroactively exonerating all those who authorized them. And Mukasey's private promise to hold up such a law, if passed, presumes that the president would not then veto the bill. In fact, the deal suggests to me that Mukasey assumes that a veto would occur and so he can retain some sense of personal integrity while knowing he will never be called on it. I'm with Jack Balkin on this:

Which leaves us with this question: Who is the bigger fool, Judge Mukasey for making these representations or Senator Schumer for believing them?

I should add that the law is clear that torture is not defined by graphic comic book pain. Lowry cites "pulling fingernails out" as torture. This gambit is an adolescent canard, only conceivable to those who have no idea about what torture actually is, and no knowledge of history. Sleep deprivation on the scale authorized by Bush and Cheney, stress positions as authorized by Bush and Cheney, hypothermia and extreme heat as authorized by Bush and Cheney are no less and no more torture than waterboarding. We have moreover no proof whatever that this torture has actually produced any actionable accurate intelligence, and considerable evidence that it has produced the opposite.

The stakes in this fight therefore could not be higher: the vote on Mukasey is about the rule of law, the honor of the United States and the security of the West. Mukasey is by all accounts an honorable man. He must know that he is going to work for war criminals whose condition for his appointment is that he not prosecute them for their law-breaking. By acquiescing to this, Mukasey is acquiescing to the elevation of the president above the law. If he does that, he is no better than Gonzales, a man who never hesitated to give his political patrons whatever "legal" sanction they wanted for anything they wanted to do.

This is not some technical issue with respect to interrogation techniques. In my view, it is much more fundamental than that. Many seem to think that because these techniques are only used on terrorists, they are no threat to American liberty. What this complacent view doesn't grapple with is that these torture techniques can be used against any terror suspect; that such suspects are not subject to due process under president Bush's understanding of his powers; that such suspects can be captured within the United States; that they can be citizens; and that the war that justifies this extraordinary power is defined as permanent. That is why combining the power to detain without charge with the power to torture is an effective suspension of the rule of law and the Constitution. And such a suspension is astonishingly broad and open-ended.

That is why this has become a fight for the West's values against the moral relativists, legalistic parsers, and advocates of total executive power. The point is not a subjective judgment about the intentions of the torturers. It is not about whether Cheney and Bush can be trusted. It is about whether any individual can be trusted with such power. In a republic based on the rule of law, the intentions of the torturers - whether good or bad - are utterly irrelevant. In the West, we assume that the intentions of our rulers are likely to be evil. That's what distinguishes the Anglo-American tradition from those who trust individuals to govern them, rather than those who trust the law to allow us to govern ourselves. The point is that no person in the United States should ever have the power to detain and torture another person without due process. Once you make an exception for one man, the rule of law is over. The Decider may decide out of his own benevolence not to torture again. But he can still torture. And the knowledge that he can, and the knowledge that he was never stopped, and the knowledge that he was able to distort the plain meaning of the law to mean whatever he wants it to mean is a precedent that is staggeringly dangerous.

It would be easy to pretend that we haven't come to this pass. But we have. We have been incredibly naive about what Cheney wants and believes. His decades-long desire to turn the president of the United States into a protectorate, empowered to do anything to anyone, and restrained only by his own benevolence is a profound threat to the rule of law and the Constitution. He must be stopped - clearly, unequivocally. He is not the people's master. He is the people's servant. In America, no one is the master of anyone else. And if the Congress cannot stand up for that principle, then the dark days we have gone through are nothing compared to what's ahead.

(Photo: Chip Somodevilla/Getty.)