The Senate Democrats have again caved on the issue of torture, unanimously confirming
Chicago federal Judge Mark Filip to be the second-in-command at the Justice Department despite his refusal to answer the simple question whether waterboarding is torture — a fact established by U.S. and international courts. As with the telecom immunity controversy, the Senate delayed the vote to suggest that they were actually taking a stand on torture and then voted with the White House to avoid a final confrontation on the question.
During his confirmation hearing in December, Filip refused to answer the question and simply said that Mukasey had not answered the question. Of course, Mukasey now says he will never answer the question, which would implicate the President in a war crime. For a prior column, click here
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 months. 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 have been 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.
Instead, the Democrats waited until all eyes were on the Ohio and Texas elections and quietly confirmed Filip, a judge who refused to acknowledge that a form of torture is a crime. The Democrats, however, believe that he is still qualified to be the second in command of the Justice Department, which is supposed to investigate such crimes committed by government officials.
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