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.