Senate Meets for 9 Seconds to Prevent Bush From Appointing Pro-Torture Nominees for Justice Position

Sen. Jim Webb, D-Va., had the floor to himself this week as he brought the Senate into session for just nine seconds to prevent President Bush from giving a recess appointment to Steven Bradbury, a controversial official involved in the use of torture by the Bush Administration. It was a worthy effort by the Senate Democrats, but it also raises questions over whether they will also block Judge Mark Filip, who is nominated to be Deputy Attorney General. Filip has refused to recognize decades of precedent that says that waterboarding is torture.

The extraordinary one-man session was the result of a refusal by President Bush to agree not to appoint Bradbury to a Justice Department position. Despite Bush’s repeated criticism of the lack of civility and cooperation in Congress, his refusal to make this promise is a striking act of hostility and pettiness. Rather than simply agree to allow members to enjoy their holiday, Bush forced the Democrats to come back into session over the Christmas vacation.

It was worth the effort. Steven Bradbury is the acting chief of the Justice Department’s Office of Legislative Counsel and Bush wanted to make it permanent despite the widespread opposition to him. Bradbury had signed two secret memos in 2005 saying it was OK for the CIA to use harsh interrogation techniques – some call it torture – on terrorism detainees.

It was a rare showing of commitment by the Senate Democrats who have been widely criticized for their failure to investigate the crime of torture by this Administration. It was Demcrats (Schumer and Feinstein) who protected Attorney General Michael Mukasey from having to recognize that waterboarding is torture. Now, 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.

Given the opposition to Bradbury for a lower position, the question is now whether the Democrats would show like commitment for his immediate boss, Filip.

5 thoughts on “Senate Meets for 9 Seconds to Prevent Bush From Appointing Pro-Torture Nominees for Justice Position”

  1. There was a very interesting and very relevant article in the American Journal of International Law: “Speaking Law to Power, Lawyers and Torture” by R Bilder and D Vagts back in 2004.

    If you have access to JSTOR here is the link:

    Scott Horton writes in Harpers that United States v Alstoetter, the famous Justice Cases was all about going after the lawyers and judges who by their actions promoted and enabled war crimes and torture and that we did sentence such individuals to prison terms for their complicity in this loathsome practice.

    Is it time for another Nuremburg Commission? And people like Yoo, Bradbury, Gonzales, Addington, Cheney and yes, Bush, to be held accountable?

    There was a passage about “reconsecrating the temple of German law” after WWII. I think we need to do the same for our law here after 9-11 and Iraq/Afghanistan. All the renditions, the network of secret prisons, the tortures and deaths, the detentions, the wire-taps,… have deeply defiled the American “temple” of law. It is past time to take the actions to reconsecrate it.

  2. It seems highly likely, that the riff in the Democratic Party will begin to come to a head. Joe Lieberman is starting to seem more responsible than some of his colleagues, for at least, being in the open about his positions. There appears to be more than a few collaborators among senior Democrats.

    While it may not be the same drama as occupied France, it does seem as though there is in fact an “Occupied Washington DC.” There seems nothing more likely than dozens of Democrats are complicit in the acts of the Bush administration. Many have alleged that a great deal of these acts may, in fact, be grounds for criminal charges. The Schumer / Weinstein position on Mukasey was surprising, at the very least. Now, guys like Webb – seem like Jimmy Stewart’s Senator Smith, in 1939 film – ‘Mr. Smith Goes to Washington.’ He’s fearless, he’s clearly not been around long enough to have entanglements that would compromise many years of subversive part-time pilfering. There’s a good chance that there are some very steamed Democrats at this act of his in showing up our Nation’s first Supreme Court appointed King.

    It is inconceivable that the last 7 years of America being tortured was solely because of the Republican majority. Those Democrats that have been getting tune-ups at Republican controlled filling stations are going to start to crank up the countermeasures to obscure vision. But frankly, their silence has been defeated by their now very publicly accessible voting records and comments. Their performance (and lack thereof) is now clearly visible and the electorate is going to be tougher on Democrats than it will on Republicans. By that, I mean, Republicans will likely be defeated in greater proportions, but Democrats that have been idle, ineffective or complicit in the problem are likely to be challenged and replaced by new Democrats.

    This act by Jim Webb, was using an option of the rules of the Senate in a clear statement that there is NO cooperation between the White House and Congress. The House of Lords … excuse … the Senate leadership has been tepid and meek. The House of Representatives needs to exercise mature leadership and captivate our citizens with action.

    Sheer hubris by the President in this appointment ploy. Another distraction tactic. The Republicans know how much certain Democrats have at stake if their found out … unfortunately for them … there’s much new flesh in the game that isn’t under the thumb of the feckless Democratic leadership and it’s seems this is the beginning of another new change of which many seasoned Democrats are not thrilled. Stay tuned for Part II of this debacle after the Holidays.

  3. That’s absolutely weird: this post was on the Supreme Court thread and got printed here! Sorry all.

  4. Here’s a zany idea: why not have the number of justices correspond exactly to the number of Circuits?

    That’s part 1.

    Part 2: Why not have the Justices elected for life by the voters of their Circuit? This would require a constitutional amendment of course, but it would make all three branches of the government elected by the people. It is odd to have two branches elected and one branch appointed.

    Part 3: Before implementing this plan, remap the Circuits.

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