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Cowardice on Display

Feinstein and Schumer set a dangerous precedent by endorsing Mukasey

By Joanna Naples-mitchell


United States Senators Dianne Feinstein and Charles Schumer ’68 would have you believe that Attorney General nominee Michael B. Mukasey is a gift from the Bush administration. They find solace in his promise that he “would leave office sooner than participate in a violation of law.” But Mukasey cannot enforce the law if he does not know what the law is.

The endorsement of the two Democratic senators has virtually guaranteed Mukasey’s confirmation as attorney general. Had the two voted against him, the nominee would have never made it out of the Senate Judiciary Committee. Instead, they swallowed his characterization of the debate over waterboarding—that is, simulated drowning of an interrogation subject—as merely hypothetical and drooled over his concern for the rule of law. In the process, they did a disservice to the very Justice Department they hope to rebuild.

Schumer praises Mukasey’s “fidelity to the rule of law” as paramount among the reasons he endorsed him. Yet the purpose of the Justice Department is to enforce the law. Respect for the law is surely a basic requirement for any nominee for the highest law enforcement post in the land, not a reason to heap on the accolades.

Feinstein, too, lowers the bar by praising Mukasey. She accepts his statement that, “I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques…hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.” Mukasey would have you believe that questions about waterboarding are purely hypothetical in nature.

Would that it were so. Sen. Sheldon Whitehouse (D-RI), who first posed the question about waterboarding, didn’t introduce it as an academic debate. He asked Mukasey whether or not waterboarding was constitutional because of reports from officials familiar with the CIA’s interrogation practices that waterboarding was used by the CIA on three terrorism suspects in 2002 and 2003.

Waterboarding has been a crime in the United States since 1901, when the government sentenced an Army major to 10 years of hard labor for water boarding a Philippino insurgent during the Spanish-American War. It was still a crime during the Vietnam War, when a U.S. soldier was severely punished after a photograph appeared in the Washington Post depicting the soldier waterboarding a North Vietnamese prisoner. There is no reason it should not be a crime now.

Yet Mukasey could only offer a conditional statement on waterboarding at best: “If it amounts to torture, it is not constitutional.” Rather than demonstrate his ability to be “strong and independent,” as Feinstein asserts, Mukasey’s words demonstrate the compatibility of his views with those of the Bush administration. President Bush stated in November 2005 that “We do not torture.” Vice President Dick Cheney said in October 2006, “We don’t torture. That’s not what we’re involved in. We live up to our obligations in international treaties that we’re party to and so forth.”

These words would have been reassuring, had they not been used to defend policies that were torture in all but name.

To curb these policies, Feinstein and Schumer offer a solution: The Senate should pass a law explicitly outlawing waterboarding. By proposing such a law, the two Senators make two foolish assumptions.

They assume that waterboarding it is not already illegal and, therefore, that it is not torture. They also assume that a bill banning interrogation techniques would not be subject to a veto from Bush.

Schumer and Feinstein seem to give Mukasey the benefit of the doubt not from principle, but from cowardice. They are failing to stand up to an administration that has demonstrated willingness time and time again to compromise American values under the guise of protecting national security. They cling to the pipedream of Justice Department reform but endorse an attorney general who parrots the Bush administration on torture.

Joanna I. Naples-Mitchell ’10, a Crimson editorial editor, lives in Kirkland House.

CORRECTION: Last Thursday’s comment “Cowardice on Display” said Senator Charles E. Schumer graduated in 1968. In fact, he graduated in 1971. The Crimson regrets the error.

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