What’s Sauce for the Rush Is Sauce for the Tim
So what we have here is a president and vice president who want to install as the country’s chief law enforcement official a man who refuses to flatly say that the United States of America should not torture people.
The New York Times, October 18:
Mr. Mukasey also pleased the Democrats who control the Judiciary Committee by saying that he considered torture of terrorist suspects to be illegal under American and international law and that the president did not have the authority to order it under any circumstances.
“Torture is unlawful under the laws of this country,” Mr. Mukasey said. “It is not what this country is all about. It is not what this country stands for. It’s antithetical to everything this country stands for.”
(Rutten has a baroque explanation of what he actually meant by his words, but you probably have to be a regular reader of his to follow it.)
I am going to pre-respond to the first person who screams that I have mischaracterized or misunderstood Rutten’s position:
#1: Click all the links.
#2: Re-read the title.
#3: Think.
Patterico (bad89b) — 11/4/2007 @ 9:18 amUnfortunately, Patterico, this issue is one devoid of rational discussion, its just an excuse for painting one’s political opponents as nazis.
SPQR (6c18fd) — 11/4/2007 @ 9:20 amSubtlety doesn’t always work in blogging. This isn’t a post about waterboarding. It’s a post about the “phony soldiers” comment and how Rutten portrayed it.
Patterico (bad89b) — 11/4/2007 @ 9:22 amMy apologies, I guess I need to improve my attempt to communicate the idea – the refusal to check sources for the actual statements that Rutten ( and others ) are misrepresenting isn’t accidental. Rutten starts from the premise that his opponents are nazis incarnate and is happy to ignore any evidence to the contrary. Its the trend to assume one’s opponents not merely wrong but evil that caused Rutten to write both blatantly wrong columns.
SPQR (6c18fd) — 11/4/2007 @ 9:35 amOh come on Patterico… How can you sit there and say that utten doesn’t have a grasp on the situation? How can you really suggest that he is misrepresenting the facts?
Oh yeah… By reading what he said.
Sorry. My bad. 🙂
Scott Jacobs (a1de9d) — 11/4/2007 @ 9:35 amTo be clear myself: Rutten has a defense to the charge of misrepresenting what Mukasey said.
But it ain’t any less “baroque” than Rush’s defense re “phony soldiers.”
Far more so, in fact.
Rutten takes a statement “We can’t torture, but I can’t say that waterboarding is torture for *all* government employees, although it clearly is for some” and makes it into “I can’t say we can’t torture.” He gets there by arguing that waterboarding really is torture, so if he can’t say it is, then he is saying he can’t say that we can’t torture.
Pretty “baroque.” Much less so than an argument that says: “When I mentioned phony soldiers, I was, as I soon explained, talking about soldiers that were, you know, actually phony.”
Patterico (bad89b) — 11/4/2007 @ 9:42 am“If what Judge Mukasey told Senator Schumer is true, why can’t he say that waterboarding is illegal? If he has pledged to enforce laws that bind the President, why can’t he pledge to enforce laws that are already on the books? ”
Rutten is making the same point. The law is the law and Mukasey is refusing to enforce the law by saying that he does not understand the English language.
blah (fb88b3) — 11/4/2007 @ 10:36 amHow do you suppose it is that a private citizen is refusing to enforce the law, blah?
Further, the question put to Mukasey was not whether he would prosecute torture, but whether waterboarding constitutes torture. I don’t think it’s Mukasey that has a problem with the language blah. Perhaps you should go watch THE VIDEO!!!11!!
Pablo (99243e) — 11/4/2007 @ 10:42 amBalkin’s post is not very clear.
What specific law on the books has Mukasey said he is unwilling to enforce?
Don’t lazily toss out a link. Give us your analysis.
Patterico (bad89b) — 11/4/2007 @ 10:45 amPatterico,
I’m sure you can get the flavor of that here.
Pablo (99243e) — 11/4/2007 @ 10:49 amDaniel Levin, then Acting Assistant Attorney General, and now referred to as a “Blocked Bush Administration Critic” has been waterboarded and said this about it:
Not exactly “is”, is it? Unless we need to rehash what the definition of “is” is.
Pablo (99243e) — 11/4/2007 @ 11:04 amPatterico – blah does not have independent thoughts. He/she/it drops by and regurgitates talking points from the Leftist site du jour.
JD (49efd3) — 11/4/2007 @ 11:24 amThat Balkin link blah/AF pooped out doesn’t say what he thinks it does. What a surprise! The lefties I’ve read are shitty at interpreting international law, Balkin, Greenwald, etc., etc.
Balkin refers to a SC decision about a Mexican national rendered back to the U.S. for trial who was suing for tort damages related to his seizure in Mexico. The Ninth Circus allowed him to sue for damages and the SC reversed. In Souter’s decision, there is a reference to the Torture Victims Protection Act of 1991, which Balkin is hanging his hat on and torture being unacceptable behavior according to the norms of behavior of civilized nations. Unfortunately for Balkin, surrounding those references Souter makes clear and repeated cautions about the uses of norms of international behavior in framing decisions and the courts clear preference for legislative guidance in these matters. He states that they have not been given a congessional or executive mandate for creativity.
If the matter were as clear cut as Balkin and blah/AF believe, why would there be any need for Biden to sponsor legislation such as the National Security with Justice Act? The answer is that there is no such existing law and Balkin is just full of shit.
Better links next time blah/AF
daleyrocks (906622) — 11/4/2007 @ 1:39 pmAll Congress has to do is pass a legislative act declaring “waterboarding” as torture.
If they won’t do, or are incapable of doing, their job, why should someone else be held responsible for it.
Another Drew (8018ee) — 11/4/2007 @ 6:00 pmAnother Drew, they won’t because the Democrats’ leadership know that if they end up in the White House in 2009, they will want this option themselves.
SPQR (6c18fd) — 11/4/2007 @ 6:24 pm“Balkin’s post is not very clear.”
blah (fb88b3) — 11/4/2007 @ 6:50 pmI suppose you could say that…
if you didn’t read the posts he links to. That’s the neat thing about writing with HTML.
Try it sometime
I did, and it was the confusing nature of what he linked to that formed part of the basis for my statement.
It’s quite clear that you’re not going to make any effort to clarify, so I’ll just note for the record that Mukasey didn’t refuse to enforce any law, as you falsely claimed. He just refused to speculate about laws that don’t exist.
Patterico (bad89b) — 11/4/2007 @ 7:00 pmSee, when someone takes the time to make an argument, even when it’s wrong, I’ll take the time to explain why it’s wrong.
If they throw out a link, and the link is wrong, then all that deserves is a quick: well, sorry, your link is wrong. Why should I waste a bunch of time refuting a false argument that you clearly understand so poorly that you can’t restate it, and that you spend 1.2 seconds making?
Patterico (bad89b) — 11/4/2007 @ 7:03 pmDaleysucks, it’s not Balkin it’s Lederman, and he “hangs his hat” on the law of the land. He makes a reference to this, among others:
There was no torture. If there had been, the decision would have been affirmed. That was the point.
blah (fb88b3) — 11/4/2007 @ 7:34 pmWaterboarding Through the Ages
blah (fb88b3) — 11/4/2007 @ 7:37 pmblah – Read again. I didn’t say there was any torture. Balkin made the first post at your link, Lederman the second. Sorry for the confusuion. They’re both wrong. Look ro rhe following paragraphs from the opinion:
The fifth reason is particularly important in light of the first four. We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. It is true that a clear mandate appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that “establish[es] an unambiguous and modern basis for” federal claims of torture and extrajudicial killing, H. R. Rep. No. 102—367, pt. 1, p. 3 (1991). But that affirmative authority is confined to specific subject matter, and although the legislative history includes the remark that §1350 should “remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law,” id., at 4, Congress as a body has done nothing to promote such suits. Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. 138 Cong. Rec. 8071 (1992).
B
These reasons argue for great caution in adapting the law of nations to private rights. Justice Scalia, post, p. 1 (opinion concurring in part and concurring in judgment) concludes that caution is too hospitable, and a word is in order to summarize where we have come so far and to focus our difference with him on whether some norms of today’s law of nations may ever be recognized legitimately by federal courts in the absence of congressional action beyond §1350. All Members of the Court agree that §1350 is only jurisdictional. We also agree, or at least Justice Scalia does not dispute, post, at 2, 7, that the jurisdiction was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority. Justice Scalia concludes, however, that two subsequent developments should be understood to preclude federal courts from recognizing any further international norms as judicially enforceable today, absent further congressional action. As described before, we now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice. And we now adhere to a conception of limited judicial power first expressed in reorienting federal diversity jurisdiction, see Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), that federal courts have no authority to derive “general” common law.
Whereas Justice Scalia sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e.g., Sabbatino, 376 U.S., at 423 (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances”);18 The Paquete Habana, 175 U.S., at 700 (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (recognizing that “international disputes implicating … our relations with foreign nations” are one of the “narrow areas” in which “federal common law” continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.
We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of §1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (CADC 1984), Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail. See supra, at 34 (discussing the Torture Victim Protection Act).
While we agree with Justice Scalia to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field) just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.19
daleyrocks (906622) — 11/4/2007 @ 8:05 pmThis is getting boring:
Place this alongside my previous comment, “waterboarding through the ages.” If you admit waterboarding is torture, then the answer is obvious; if you don’t your argument will end up tortuous to the point of absurdity.
I expect no less from you.
blah (fb88b3) — 11/4/2007 @ 8:58 pmAs Pablo pointed out above:
Why should blah be considered a greater authority than someone who actually experienced it?
Patterico (bad89b) — 11/4/2007 @ 9:01 pmBlah – The paragraph you just excerpted follows below the ones I just provided – the ones where the court makes its preference clear for legislative guidance in these matters. Again, if there is already legislative history on the books, why is Biden introducing a new bill? It seems you are the one with absurd arguments. The opinion seems clear – explain it in your own words if you see it in another way.
daleyrocks (906622) — 11/4/2007 @ 9:18 pmdaley, you’re missing the point, which is that torture, like piracy, is an exceptional case. Read the words on the page. Pat read them, and is trying to make the case that waterboarding does not necessarily fit the category. I don’t agree, but that’s irrelevant. Unfortunately for Pat’s argument, however, the fact the man who made it was fired, and his opinion suppressed.
blah (fb88b3) — 11/5/2007 @ 7:04 amYou posted the quote yourself Pat. According to Levin (and it’s a stupid argument) it may not always be torture. But since the stricter controls he recommended were not considered, that means it’s reasonable to say in this case that it was.
Read the history of waterboarding. It’s a history of torture. Follow the links.
This whole argument is pathetic. It;s the defense of criminality,
by a prosecutor. Who watches the watchmen Pat? You want to know why we have Miranda?
No link you have provided, and no argument you have made, shows that Mukasey refused to enforce the law. That’s just something you made up.
Was he asked whether waterboarding was always torture, or whether waterboarding was torture as the Bush Administration practiced it? If the latter, did he say he knows how they practiced it?
Patterico (a39868) — 11/5/2007 @ 7:17 amYou’re being lawyerly about simple moral questions.
And you told me prosecutors have an obligation beyond simple advocacy.
I’m done with this shit.
blah (fb88b3) — 11/5/2007 @ 7:29 amthank God for that…
Scott Jacobs (a1de9d) — 11/5/2007 @ 7:33 amWe sometimes receive simple blessings.
SPQR (6c18fd) — 11/5/2007 @ 7:37 amI still didn’t get an explaination of the laws on the books that blah’s links were referring to and an explaination why, if we already had them, we need additional laws such as Biden’s or why they couldn’t prepare articles of impeachment based on the existence of such laws. blahs links don’t say what he thinks they do once again.
daleyrocks (906622) — 11/5/2007 @ 7:42 amblah,
You obviously misunderstand the obligations of a prosecutor. It is certainly not to declare an act illegal simply because the prosecutor believes the act immoral.
I am giving law-oriented questions to a question that is legal in nature, i.e., did Mukasey promise to enforce the law or not?
Morality isn’t the issue — and if it were, you’d have no reason to be upset at Mukasey. He said he finds the practice repugnant.
Patterico (5ef707) — 11/5/2007 @ 7:50 amThe first thing wrong with this particular “Regarding Media” column is that it’s not really media criticism at all. It’s Rutten’s way of squeezing his political objections to Bush into a column about a different subject.
If Rutten equally faulted people on his own side when they made lapses, this wouldn’t be an issue. The column would exhibit the fairness Rutten says he looks for in media. As it stands, the column reads like Rutten’s vehicle for advancing his political beliefs.
This was the same problem with Michael Hiltzik’s business column – many of them were not really about business at all. They were monotonous plugs for Hiltzik’s political beliefs.
Bradley J. Fikes (1c6fc4) — 11/5/2007 @ 7:52 am“You obviously misunderstand the obligations of a prosecutor. It is certainly not to declare an act illegal simply because the prosecutor believes the act immoral.”
You’ve been quibbling about what is obviously an act of torture, using the one defense of “torture light” made by someone who was fired for even considering the distinction: fired for being too soft.
I understand the distinction between morality and law. You don’t understand the distinction between morality and immorality. Your defense is immoral.
blah (fb88b3) — 11/5/2007 @ 8:42 amSorry for the confusion
damnit. Didn’t he say he was done?
The tease…
Scott Jacobs (a1de9d) — 11/5/2007 @ 8:43 amI think you guys should check out the post on waterboarding at AoShq.
dave (96265d) — 11/5/2007 @ 8:45 amblah’s mistake is believing that links from sources on the left automatically guarantee cogent and error free analysis.
daleyrocks (906622) — 11/5/2007 @ 9:16 amAmericans should not force our nation’s defenders to disclose the tools they use to protect us. As long as our enemy chops heads, tortures, and murders their captives, I support torture.
Clark Baker (68ef14) — 11/5/2007 @ 12:02 pmAny book written by a conservative and any book that speaks the truth about the evil UN and CFR and proves GLOBAL WARMING is a world wide hoax
krazy kagu (171210) — 11/5/2007 @ 1:42 pm