Nominee for Deputy Attorney General Refuses to Recognize Waterboarding as Torture

After Democratic senators saved Attorney General Michael Mukasey from having to recognize that waterboarding is torture, the person nominated to serve as his deputy has done the same thing. Of course, Mark Filip today did not testify (as Mukasey did) that he simply did not know what waterboarding is. However, Filip refused to acknowledge that is torture despite ample cases establishing that fact. The question is whether Democrats will again avoid the issue by confirming a nominee who refuses to acknowledge the illegality of a heinous practice.

Filip did state that he “personally” disliked the practice. Of course, a confirmation hearing is not about what Filip personally dislikes. It is about his understanding of the law. Once again, the Senators did not press the point or state that they would oppose his nomination until he answered the question. This is akin to a nominee saying that he did not want to answer a question on whether Poll taxes are unconstitutional. What is the possible reason for not answering a direct question about the state of the law on the issue? Furthermore, why should not a nominee have to state his understanding of that standard? It just so happens that Filip like his future boss blanked on the very act of torture used by this Administration.

In his testimony, Filip stated , “the attorney general of the United States is presently reviewing that legal question. . . .I don’t think I can or anyone who could be potentially considered for his deputy could get out in front of him on that question while it’s under review.” This is a curious justification. First, Mukasey has been “studying” this questions for weeks. The question is not whether it is torture — that question has been answered by both Congress and the courts. The only question is whether Mukasey will recognize the inconvenient fact that President Bush ordered an act defined not just as a crime but a war crime. He is clearly not willing to do that. Second, if Filip were asked if Roe v. Wade is good law, we would not allow him to say that he understanding of the law cannot be revealed in deference to his superiors. Under this theory of confirmation, a long-line of nominees will be able to refuse to answer the single most important legal question facing the Justice Department — by citing Mukasey’s indecision. Mukasey appears to be performing his own version of Hamlet on the Potomac — looking at waterboarding from every angle to find a plausible reason to claim that it is not torture.

It is clear that Democrats again do not want to confront the issue of torture in this nomination or any area. They have avoided acknowledging that the destroyed CIA tapes contained evidence of torture ordered by the President. They prevented a showdown with Mukasey over the issue with Sens. Schumer and Feinstein saving his confirmation at the last minute. It now appears that Democratic leaders knew of the torture program, including reportedly Pelosi, Rockefeller and Harman.

The issue should be simple for Democrats if they are truthfully opposed to torture. They should block or defeat the nomination of Filip until he answers this basis question. Otherwise, Mukasey should be stuck with an acting deputy. Is that so terrible a thing? Schumer insisted that he saved Mukasey because we had to have an Attorney General — even when who swore that he did not know what waterboarding was and when told, refused to answer the question. Clearly, the same logic would not apply to the deputy attorney general.

20 thoughts on “Nominee for Deputy Attorney General Refuses to Recognize Waterboarding as Torture

  1. Warning The posting just above by CoreyStylish is bad spam. The link goes to a phony website hawking a getrichquick scheme, with a trapdoor.

    Do not go there.

  2. good post Daniel B. Holt is like many politicians nowadays, when a constituent cuts to the chase as you did, they go into a hierophantic politico-speak that is as stylishly meaningless as reciting serial numbers off of washing machines. It is so easy to see them switching gears. And infuriating.

    I thought the FEC might shut down without the block appointments: after all two members don’t constitute a quorom.

    Or do they? Remember the Office of Legal Counsel? It turns out they were asked a quorum question a couple years ago on the NLRB. Here was their opinion:

    If a quorum of the committee delegates voting power to a 3 person panel and then 1 person of that panel is absent, then the remaining 2 people of the panel can do all the business of the committee. I think I remember this correctly.

    Can the FEC in its waning moments with its membership intact do a similar stunt?

    You heard it here first….

  3. I find myself very much in the same place as RCampbell, in that my faith in the Democrats to do anything useful beyond protecting the Supreme Court from further disastrous appointments has pretty much evaporated.

    The utter arrogance of the Bush Justice Department, whose philosophy seems to be “we will decide what is legal or illegal, precedent be damned” drives me to the brink of despair. But even more troubling is the “roll over and play dead” response by the Democrats, who allow these tainted nominees like Mukasey and Filip to be confirmed anyway.

    This past August, I attended a constituency meeting of my Congressman, Rush Holt, desiring to share my strong feeling that GWB’s use of signing statements to avoid compliance with laws he doesn’t like amount to violation of his oath of office. Bruce Fein has elegantly argued this very position, and I mistakenly thought Congressman Holt might share this view. I was flabbergasted when it became evident he didn’t really want to talk about this, and he sought to deal with it by saying “we’re holding hearings”. For all of their hearings, it seems no one gets held accountable for anything, and Bush gets exactly what he wants, time and time again.

    I have little faith that GWB will have a real accountability moment as long as he is in office. I continue to hope that once he and Cheney are private citizens, maybe someone will pursue them for the rampant lawlessness that has been their legacy, but I’m not holding my breath.

  4. At least Von Spakovsky didn’t get his FEC berth, so I guess Leader Reid got a couple of things right there at the end.

  5. The only good thing about making Mark Filio the Deputy AG is that it takes him off the Federal bench. A bad judge is always worse than a bad bureaucrat.

  6. The Electoral College and a DW/RC ticket?

    Two wrongs don’t make a right.

    the threat is not that we would get another Alito or Roberts, they are fairly mild and not at all bomb-throwers.

    No, the real threat is currently sitting in the ante-room, DC Appeals, and I suspect Professor Turley knows who I am referring to, but I am practicing a prudent silence.

    Hint: Lochner.

  7. I humbly accept your nomination. Now we only need the electoral college to put the Deeply Worried, RCampbell ticket over the top.

  8. My enthusiasm for the Democratic Party has waned considerably since those halcyon days of victory and promise long, long ago in Nov.’06. I’ve come to the conclusion that the ONLY reason to vote for the Democratic presidential candidate, regardless of who that might be, is to protect selections on the Supreme Court. It would appear there will at least two openings in the next 4-8 years and I couldn’t bear to see any more Roberts or Alitos let alone the likes of Thomas and Scalia on the high bench. I’ll second Deeply Worried’s nomination of J. Turley.

  9. In response to Shredder and ‘Thom Hartmann’ – my intuition tells me, on the possible merits, this is no doubt a lot less well thought out
    – than that.

    And I’m not buying it.

  10. I agree with Shredder that the Bush Administration uses torture to send a message of terror, to detainees and Americans. The Democrats need to terrorize them by holding their collective feet to the fire and bring them up for U.S. charges and possibly international charges for torture. It would be nice if George W’s involvement in ordering the torture is disclosed publicly, as Professor Turley has suggested.

  11. It’s just unbelievable to me that there is even the necessity of a discussion about this. Prof. Turley, thank you for continuing to spotlight all this. Thom Hartmann made a good point today: given the overwhelming evidence that torture does not work, and does not elicit the truth, then why do they do it? The answer is that it terrorizes people. It’s not to get at the truth; it is to “send a message.” In other words, torture is a form of terrorism. I think this is exactly right and that this framing is powerful and should be adopted.

  12. “For modes of faith let graceless zealots fight;
    He can’t be wrong whose life is in the right.”

  13. God help us if so.

    Professor Turley, I hope you will be ready to answer your country’s call and become an Associate Justice when we get another vacancy to fill.

  14. There is still a view among some on the Hill that Democrats have a captive audience. After all civil libertarians are unlikely to vote Republicans after the Bush Administration. Accordingly, there is little fear that the protection given the President on torture will be remembered, let alone acted on, in the coming elections. They may be right. Cynical, but right.

  15. As to torture:

    We all remember and love (Okay, at least some of us are old enough to know who he was) Wiley Rutledge, of golden laurels in that celestial hall where the lovers of the reside in scholarly bliss.

    As to the mistreatment of men by governments, he said in the famous Yamashita case:

    “It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is of all men, whether citizens, aliens, alien enemies or enemy belligerants.

    He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself…”

    Another freedom-hating liberal, no doubt, to the Deputy AG.

  16. I don’t know, news like this makes me want to grab for my bottle of Paxil….

    I keep wondering if anyone on the Hill actually remembers any of the law they learned when they were getting their JD’s?

    So yet another of the long grey line of FS foot-soldiers is career-tracked to the purple. And the only ones who could stand to block the greased skids are now standing aside.

    Reid is quoted in the Times today. A floor speech on Friday and he said that the Bush era will be remembered as a singular and dark time for the country.

    It wouldn’t have been so dark if he and his leadership would have done their job.

    Professor Turley keeps sounding like Cato the Censor and his “Cartago delenda est”, in maniacally repeating the disconnect between the Democrats and their base.

    Roger that.

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