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Mukasey, Feinstein and the Constitutional Wing of the Democratic Party

normalconst.jpgWhile the Beltway media remain preoccupied with trivial, sometimes manufactured issues about Presidential records, drivers’ licenses, and kitchen metaphors, the Senate Judiciary Committee will vote Tuesday on whether to confirm an Attorney General nominee who won’t declare waterboarding is torture and thus illegal, but who may shield the Bush Administration from accountability for violating the Constitution and the rule of law.

On the issues actually critical to American democracy, the great divide is between the leaders of the Constitutional Wing of the Democratic Party, like Russ Feingold, and members of the corrupt Beltway establishment like Dianne Feinstein. Russ Feingold joined at least five other Committee Democrats who care about the Constitution by announcing his opposition to Mukasey. Feingold’s statement (h/t C&L’s Amato) is honest, straightforward and clear in its principles:

“I will vote against the nomination of Judge Mukasey to be the next Attorney General. This was a difficult decision, as Judge Mukasey has many impressive qualities. He is intelligent and experienced and appears to understand the need to depoliticize the Department of Justice and restore its credibility and reputation.

At this point in our history, however, the country also needs an Attorney General who will tell the President that he cannot ignore the laws passed by Congress. Unfortunately, Judge Mukasey was unwilling to reject the extreme and dangerous theories of executive power that this administration has put forward.

The nation’s top law enforcement officer must be able to stand up to a chief executive who thinks he is above the law. The rule of law is too important to our country’s history and to its future to compromise on that bedrock principle.”

Feingold was probably aware of Scott Horton’s report that Mukasey met privately with members of the Federalist Society and reportedly gave them “vague assurances” that he would not take any steps — such as John Dean’s suggestion to designate a special prosecutor — to hold Administration officials accountable for ordering torture or other violations of the law. Is it possible Mukasey would have tolerated a discussion that bordered on obstruction of justice?

In contrast to Feingold’s principled stand, Senator Dianne Feinstein, appearing on CNN, was disingenuous defending her announcement to vote for Mukasey. She argued, as had Senator Schumer on Friday, that Mukasey promised to uphold a statute outlawing waterboarding. She forgot to mention she had already made her decision earlier last week, apparently before Mukasey made his commitment to Schumer.

As Marty Lederman reminded the Washington Post’s editorial board, the US Congress has repeatedly outlawed waterboarding and other forms of torture, only to exempt the CIA in the Military Commissions Act, while arguably immunizing those who enaged in torture. But immunity may not extend to the President or others who might have authorized torture. So Mukasey’s dissembling seems tailored to protect Bush and those around him, a realization that caused Horton, a previous Mukasey supporter, to conclude that Mukasey must be rejected on principle.

Feinstein not only voted for the unconstitutional MCA last year, she tried to cover up her abandonment of principle yesterday by suggesting that an amendment outlawing waterboarding be attached to the FISA bill, but that would be even more pernicious. She already voted for the disastrous Intelligence Committee version of the FISA bill, which contains serious violations of the 4th Amendment and extends immunity to the telecom companies. So she’s proposing to condition any prohibition of undisputed torture on accepting these further affronts to the Constitution.

Marty Lederman has more links to the history of waterboarding. And four previous Judge Advocates General, top military lawyers, sent a letter to members of the SJC, urging them to speak clearly on this issue:

The Rule of Law is fundamental to our existence as a civilized nation. . . . In this instance, the relevant rule – the law – has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise – or even to give credence to such a suggestion – represents both an affront to the law and to the core values of our nation.

The Constitutional Wing of the Democratic Party is well short of a Senate majority, and still short votes in the Judiciary Committee. The numbers to call are here. If we lose in Committee, will someone mount a filibuster?

Update: FDL – NY activists are planning activities at Senator Schumer’s offices on Monday. See here for more details. (h/t Selise and RagingGurrl)

(Fantastic street sign intersection photo via Twolf1.)

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley