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Friday, November 9, 2007
By Dr. Steven Taylor

Via the NYT: Mukasey Wins Vote in Senate, Despite Democrats’ Doubts.

As James Joyner quotes from WaPo:

The final tally [53-40] gave Mukasey the lowest number of yes votes for any attorney general since 1952, just weeks after lawmakers of both parties had predicted his easy confirmation.

The total number of votes cast (i.e., 93) indicates that despite all the furor, a number of Senators (many of whom are too busy running for the presidency) didn’t bother to show for the vote.

Mukasey’s confirmation reminded me of something I have been meaning to comment upon for at least a week, but keep failing to get around to. Indeed, I have been meaning to write something lengthy (for a blog post, anyway), but here’s the condensed version: if there are a substantial number of key Democrats (you know, the current majority party) who believe that there is a lack of legal clarity over the classification of waterboarding, why not at least try to remedy the situation via legislation-surely a clearer law would help, if there really is a substantial question here. After all, they are part of the legislative branch (they makes laws, for those of you scoring at home). I fully understand that there are those who are concerned that even with a law that it might be ignored by this administration (the President has asserted the right to ignore laws before), but surely if there is a lack of clarity over the content of the law, it isn’t the Attorney General’s job to fix it, it is the legislature’s.

This is yet another example (to me, at least) of the fact that while the Democrats have talked a good game (since before the 2006 elections) about how they see the need for substantial policy shifts in terms of executive power, that really all they are willing to do is fling rhetoric. (For additional examples, see the various hearings that have been held and various threats about curtailing-or at least investigating-executive overreach, all of which were nothing more than hot air).

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Filed under: US Politics, War on Terror | |

14 Comments

  1. The problem with making it specifically illegal is that it in effect absolves the Bush Administration from using it over the last 6 years.

    Such an action would greatly aid a defense that the law on torture was unclear and desperate actions were needed in the wake of 9-11.

    No, the best solution is to have it become widely recognized that the Bush Administration broke clear-cut standing law and that no further legislation is needed in this regard because waterboarding was well over the line.

    Comment by Joe Mucia — Friday, November 9, 2007 @ 9:35 am

  2. I take the point, but ultimately it is unclear to me that there will be any consequences for any of those actions, and therefore the greater good is served by clarity over the long haul.

    Surely the current debate helps to keep the “the laws was unclear” defense quite viable.

    Comment by Dr. Steven Taylor — Friday, November 9, 2007 @ 9:43 am

  3. […] In the body of the post I meant to mention the value of strategic ambiguity on the subject of torture and that the Democrats in the Senate have maintained it but somehow it got away from me. Steven Taylor makes a related point: Indeed, I have been meaning to write something lengthy (for a blog post, anyway), but here’s the condensed version: if there are a substantial number of key Democrats (you know, the current majority party) who believe that there is a lack of legal clarity over the classification of waterboarding, why not at least try to remedy the situation via legislation–surely a clearer law would help, if there really is a substantial question here. After all, they are part of the legislative branch (they makes laws, for those of you scoring at home). I fully understand that there are those who are concerned that even with a law that it might be ignored by this administration (the President has asserted the right to ignore laws before), but surely if there is a lack of clarity over the content of the law, it isn’t the Attorney General’s job to fix it, it is the legislature’s. […]

    Pingback by The Glittering Eye » Blog Archive » Why the Democrats Did Not Filibuster (Updated) — Friday, November 9, 2007 @ 10:23 am

  4. This argument is moot, as a law passed by Congress explicitly banning torture would surely be vetoed, and I highly doubt enough Republicans would be willing to risk being seen by their base as “soft on terror” in order to vote to override.

    Therefore, assurring that the chief law enforcement officer in the country interprets torture as illegal (how is this not basic/fundamental in our free society?) is not “flinging rhetoric,” but the only practical attempt at establishing legal clarity.

    Comment by duckspeaker — Friday, November 9, 2007 @ 10:34 am

  5. I am not sure so that it would be vetoed, although I could see it happening.

    Still, such a debate would be useful and illuminating and far more useful than empty rhetoric.

    Comment by Dr. Steven Taylor — Friday, November 9, 2007 @ 10:57 am

  6. The Constitution gives Congress full power to pass some laws without needing to submit them to the President for his signature. IIRC, that’s why Bush didn’t veto Congress’ resolution banning the military from using interrogation techniques not listed in the Interrogation Field Manual.

    Tony Arend quotes from the Constitution in a blog post that answers a different question: “And lest we forget, under Article I, section 8 of the Constitution, Congress is empowered to ‘make Rules concerning Captures on Land and Water.’” Interrogating captured prisoners concerns “Captures on Land and Water.” Likewise, the Constitution does not limit those Rules to just the military.

    IOW, I don’t think that such a legal change would be submitted to President Bush for his signature; it would become law once Congress passed it.

    Comment by Max Lybbert — Friday, November 9, 2007 @ 11:17 am

  7. “The Constitution gives Congress full power to pass some laws without needing to submit them to the President for his signature.”

    Congress can pass a joint resolution, which doesn’t require the president’s signature, but only for matters that fall exclusively under the purview of Congress (procedures and internal organization of the Congress, mostly). Congress may also propose constitutional amendments in this fashion, since the President doesn’t have the power to veto a proposed constitutional amendment. But all ordinary laws are subject to presidential vetoes.

    Congress could, however, attach a provision outlawing waterboarding to “must pass” legislation.

    Comment by Chris Lawrence — Friday, November 9, 2007 @ 11:57 am

  8. Congress has full authority to regulate those things mentioned, but they are all subject to the veto, like all of the Article I, Section 8 powers.

    The only thing that I can think of that is of any consequence that a President cannot veto is a proposed amendment to the Constitution.

    Likewise he cannot veto anything dealing with impeachment.

    Of course, neither of those issues have anything to do with the act of legislating, per se (i.e., they aren’t lawmaking).

    Comment by Dr. Steven Taylor — Friday, November 9, 2007 @ 11:59 am

  9. […] Other Bloggers on the Subject are: Captain’s Quarters, The Newshoggers, Los Angeles Times, Power Line, Outside The Beltway, UrbanGrounds, The Heretik, MSNBC, Donklephant, Washington Monthly, Law Blog, Prairie Weather,ScrappleFace, Capitol Briefing, The Van Der Galiën Gazette, The American Street, The Caucus, Daily Kos, Balkinization, Cliff Schecter, The Impolitic, NYT, The Hill, The Texas Blue, The Glittering Eye, Unqualified Offerings, PoliBlog ™, Liberty Pundit, At-Largely, DownWithTyranny!, Buck Naked Politics,The Agonist, At-Largely, The American Street, Sister Toldjah, Blue Crab Boulevard, Don’t Go Into The Light, Yahoo News, michellemalkin.com, Three Wise Men, BitsBlog, Corrente, Wake up America and Blue Crab Boulevard […]

    Pingback by Chuck Adkins » Short Takes — Friday, November 9, 2007 @ 12:37 pm

  10. Chris beat me to the answer, but I didn’t realize it at the time.

    Comment by Dr. Steven Taylor — Friday, November 9, 2007 @ 12:58 pm

  11. Thanks for the clarification.

    Comment by Max Lybbert — Friday, November 9, 2007 @ 1:58 pm

  12. I smell a good multiple choice question for my American government class in the Spring.

    The other stuff the president can’t veto are his own proposals: treaties and appointments to the executive and judicial branches (advice and consent stuff). There are also a few weird things Congress can pass that have legal force but aren’t legislation, like the budget resolution, that are authorized by ordinary laws and only have legal force within Congress.

    Legislative vetoes are also not subject to presidential veto, but the legislative veto is unconstitutional and (if the president is feeling his oats) may be ignored by the executive branch. In practice, presidents tend to back down in the face of legislative vetoes, since Congress is likely to attach the “veto” to a funding bill or some other “must pass” legislation anyway.

    Comment by Chris Lawrence — Friday, November 9, 2007 @ 7:32 pm

  13. Couldn’t Congress pass a resolution specifically affirming that waterboarding is torture under current law, and that any act of waterboarding is/was a crime? Obviously it would be worded far better then that, but couldn’t that be the gist?

    Comment by Li — Saturday, November 10, 2007 @ 11:38 am

  14. They could, but such a resolution would have no legal force.

    Comment by Dr. Steven Taylor — Saturday, November 10, 2007 @ 11:41 am

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