Now Why Didn't I Think of That? Washington Post Proposes That Senate Ban Torture!
Marty Lederman
The Washington Post today, straining to demonstrate Solomonic wisdom, urges Senators to do two things simultaneously: They should confirm Judge Mukasey and, at the same time,
they should do something which, for all the rhetoric, they have so far declined to do: ban torture, by passing the National Security with Justice Act sponsored by Sen. Joseph R. Biden (D-Del.). The act would limit all United States personnel -- military and civilian -- to using only interrogation techniques authorized by the U.S. Army Field Manual on Intelligence Interrogation, which expressly prohibits waterboarding and which military leaders have said gives them the tools they need to get reliable information from difficult subjects.Has it really come to this? Can one of the nation's leading newspapers actually decide to publish the words that it's about time "the Senate" finally "ban torture" -- something it has thus far "declined to do"?
--
On July 6, 1955, the Senate unanimously gave its advice and consent to the ratification of the Geneva Conventions, each of which (in Article 3, which applies to al Qaeda detainees) categorically prohibits "torture" (not to mention "cruel treatment").
-- On October 27, 1990, the Senate unanimously gave its advice and consent to the ratification of the Convention Against Torture, article 2(1) of which obligated the United States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
-- In compliance with article 2(1) of the CAT, in 1994 the Senate and House approved, and on April 30, 1994 President Clinton signed,
the Torture Act, which categorically prohibits torture outside the United States (18 U.S.C. 2340A(a)).
-- And it's not as if torture was legal even before the Senate, House and President acted on these instruments. As the Supreme Court recently explained, under international law (including the laws of war binding on the executive branch),
the flat ban on torture is among the handful of international law norms with the greatest "definite content and acceptance among civilized nations": Even for purposes of civil liability, "the torturer has become?like the pirate and slave trader before him?hostis humani generis, an enemy of all mankind".
All of which is to say -- and it's fairly amazing that this still needs to be said in this day and age -- if there is any single thing imaginable that the Senate, the Congress, and the world community have not "declined to do," it is to ban torture categorically. (Even Judge Mukasey understands this: He writes it dozens of times in his responses to the Senate.)
That's not to say it would not also be a good thing to enact the Biden bill, which would specifically require all United States personnel, including the CIA, to use only interrogation techniques authorized by the Army Field Manual. That would be yet another step that would help prevent the Bush Administration from violating the current bans on torture by doing things such as implausibly characterizing its torture as "not torture."
HOWEVER . . .
1. Whether or not the Biden bill ever becomes law, it remains the case that the torture is, in fact, unlawful -- and that the Senate and the Congress have voted repeatedly for actual laws and treaties (the supreme Law of the Land) that say so.
and,
2. Just in case the Washington Post has forgotten about yet another legal text, it's worth reminding Fred Hiatt that although the Senate's vote to confirm Judge Mukasey would effectively make him the Attorney General, the Senate does not have the power to "pass" the Biden bill. That would require President Bush's signature, as well (or supermajority votes of both chambers) -- and President Bush won't sign such a bill, precisely because he wants to be able to keep violating the longstanding legal prohibitions on torture and cruel treatment.
* * * *
What the Post might have written that might have made some sense: "Because Judge Mukasey and the Bush Administration do not seem to understand that the techniques they refuse to disclaim are torture and cruel treatment that are already unlawful several times over, the Senate should tell President Bush that it will confirm Judge Mukasey if and only if -- and after -- the President signs the Biden bill."
That wouldn't be a panacea -- because President Bush could always rewrite the Field Manual. (Don't put it past him.) But it would be a start. And it would make sense. Today's Washington Post editorial, however . . .
[ADDENDUM: The Post editorial is obviously motivated by a sense that Michael Mukasey is a thoughtful and serious person, with the sort of gravitas and integrity that the Department of Justice desperately needs right now. I have every reason to think that is correct -- indeed, Scott Horton has worked with him and strongly vouches for his character, to the point where Scott had been urging his confirmation. But as Scott himself notes today, the vote is no longer about Mukasey's character -- or not only about it, anyway:
I have very strong conflicting views about the vote which is coming in the Judiciary Committee. I believe that Mukasey, as an individual, is exceptionally well qualified to serve as attorney general. I would approve the Mukasey who says he "personally" finds waterboarding abhorrent. But I am troubled by the "official" Mukasey who is being trotted out as something different. And I believe that the nation cannot, at this stage, accept the appointment of an attorney general who refuses to come clean on the torture issue. In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite.
If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.
P.S. I really, really hope that the DOJ-arranged meeting Scott describes, between Mukasey and "movement conservatives," did not actually occur -- or that, if it did, Mukasey rebuked them in the strongest possible terms. If the account is accurate, it's pretty chilling.]
Posted 3:39 AM by Marty Lederman
http://balkin.blogspot.com/2007/11/washington-post-jumps-shark.html
