Frank Rich has another excellent column in tomorrow's New York Times on "The Coup at Home," pointing to the erosion of our democracy during the Bush Administration. (He notes that George W. Bush is perhaps not in the strongest position to be giving Perez Musharoff lectures on fidelity to democracy or to constitutional norms in the face of perceived threats to his authority, especially if one can label one's opponents as 'terrorists.")

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:

As Marty has detailed in multiple posts (including below), the Bush Administration has argued that water boarding is not "torture," and it has argued that water boarding is not "illegal" if a Justice Department official so opines.

In conjunction with those arguments, the Bush Administration also appears to suggest that whether water boarding constitutes "torture" depends not only on the water boarding itself but on the urgency of the situation. By this reasoning, a water boarding session under urgent circumstances is not "torture," while the same water boarding under less dire circumstances is "torture."

The Administration's position is described as follows:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said....

Back during his confirmation hearings, I suggested that Michael Mukasey could and should address Senators' concerns about waterboarding by simply stating that it is unlawful torture (and cruel treatment), but that no CIA officials will be prosecuted for having followed contrary legal conclusions issued by OLC. Of course, he did not take that route; instead, he told Senators that he would review the relevant legal memoranda, and then prohibit any conduct that he concluded would be unlawful.

Senator Biden just asked the Attorney General how it could be that the legality of waterboarding depends on the "circumstances," as Mukasey wrote in his letter. Mukasey's response was revealing: He pointed to the "shocks the conscience" test under the Due Process Clause and the McCain Amendment, under which, Mukasey argued, the "cruelty" of the technique must be weighed against the potential benefits. Biden did not understand how such sliding-scale variables could affect whether the technique is torture or not. Mukasey began to respond that he was not talking about the torture statute.

Alan Dershowitz has an op-ed in today's Wall Street Journal, available through the Harvard Law School web site. I have no doubt that most Balkinization contributors will disagree strongly with the thesis of the piece, which is that there are indeed circumstances where "we" would want the President to authorize torture. He also argues that Mukasey was correct to say that he would need to know specific circumstances before offering a definitive opinion on whether waterboarding, or any other form of interrogation, was unconstitutional because, Dershowitz says, existing case law indicates that the Supreme Court offers quite ambiguous doctrine on the point, that what "shocks the conscience" may involve taking into account the purposes for which any given method is used.

This Wall Street Journal op-ed by Steven Calabresi and John McGinnis argues for John McCain on the grounds that he will appoint the judges who will "restor[e] constitutional government" and prevent Democrats from "threaten[ing] the jurisprudential gains of the past three decades, and provid[ing] new impetus to judicial activism of a kind not seen since the 1960s":
The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

The Administration has now publicly acknowledged that it used waterboarding, that it might do so again in the future, and that it has concluded that waterboarding is lawful, at least under certain circumstances (apparently, where it doesn't shock this Administration's conscience). Virtually the entire rest of the world, including, as far as I can tell, every legislator (both Democratic and Republican) who has spoken to the question, has concluded that waterboarding is categorically unlawful because, at the very least, (i) it is torture, prohibited by the torture act and Common Article 3, and the Convention Against Torture; (ii) it is cruel treatment, prohibited by Common Article 3; and (iii) it shocks the conscience, therefore violating Article 16 of the Convention Against Torture as well as the McCain Amendment.

The Department of Justice disagrees. And it has therefore authorized the CIA to engage in conduct that the rest of the world considers unlawful torture and cruel treatment. (In his testimony today, CIA Director Hayden euphemistically explained that the CIA uses such techniques -- which the FBI and DOD representatives testified are unnecessary for the collection of vital intelligence -- in order to get detainees "into a zone of interrogation.")

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

Yesterday, CIA Director Michael Hayden confirmed that the CIA used waterboarding on three subjects.

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it.

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

Not surprisingly, Attorney General Mukasey has proven George Orwell right: He refuses to say that waterboarding is unlawful -- sometimes it is; and sometimes . . . perhaps not. It all depends on the facts and circumstances. In a letter he issued last night, Mukasey wrote: "If this were an easy question, I would not be reluctant to offer my views on this subject. But, with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding.

Last evening a friend asked whether I was going to blog about the really rather unbelievable story Jan Greenburg broke yesterday about Daniel Levin and waterboarding. (Unbelievable in the sense that, when someone described it to me, I assumed he was kidding -- trying to come up with something that would top the Ashcroft hospital story to see if he could get a rise out of me. I obviously have not learned my lesson that in this Administration, when it comes to the law, one should assume that nothing is beyond the pale.)

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).

Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

University of Virginia political scientist Larry Sabato has just published an interesting new book, A More Perfect Constitution, calling for constitutional reform (including a new convention). Not surprisingly, I am a fan, even if I don't agree with him on all of his 23 specific proposals. I have a review in the Austin American-Statesman for those who are interested in finding out more about it. Phyllis Schafly has also reviewed it; perhaps not surprisingly, she's far less a fan.

This article by Charlie Savage of the Boston Globe, which Marty discussed last week, describes the positions of many of the major presidential candidates.

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

No way. In general, the excesses of the Bush II administration can be dealt with without permanently infringing on executive power. You don’t need provocative signing statements to be an effective president. And as Jack Goldsmith argues, referring issues like detainee treatment to Congress can actually enhance presidential authority. But what of a new Clinton administration’s (or any other Democratic candidate, for that matter) stance on executive power generally? The term “unitary executive” is now so toxic that it may have to be jettisoned. But adopting a cautious approach to executive power would simply repeat the mistakes of Clinton I.

After the criticism leveled at him last week, it is a pleasure to commend David Broder for his extremely interesting article in today's Washington Post on a forthcoming conference at the University of Oklahoma, called by former Sen. and current UO president David Boren, to explore the possibility of a "non-partisan" candidacy for the presidency by New York Mayor Michael Bloomberg.

Jeffrey Rosen reminds us that the contemporary Supreme Court has been remarkably friendly to business interests. It is good to have an account of this in the popular press every now and then, and no one is more deft than Rosen in telling the story. But the story itself should hardly surprise anyone.

From the standpoint of political science it is unremarkable that the modern Supreme Court has tended to side with business interests. First, as a preliminary matter, it is rare that someone gets appointed to the Supreme Court unless they are simultaneously acceptable to the mainstream of American politics, to political elites, and to elites in the organized bar. The same is true of the lower federal courts as well, although to a lesser extent. Candidates drawn from this pool are unlikely to be very hostile to business interests, and there is a good chance that they will be sympathetic. These tendencies mean that, in the long run, federal judges sympathetic to or supportive of the claims of business litigants will be more numerous than judges hostile to those claims.

George W. Bush is now in the midst of trying to ensure his legacy. His speech this Friday at the Conservative Political Action Committee made clear that he sees the future direction of the Republican party as continuing what he regards as his signature policies: demanding lower taxes appointing conservative judges, increasing spending on defense, and fighting the war on terror, which, for Bush, means continuing the war in Iraq and the military occupation of Iraq indefinitely. Put another way, Bush's speech put down a marker that if John McCain or any other Republican wants to be elected in 2008, Bush expects it will be by a continuation of his basic policies-- a third term of the George W. Bush Administration. It is worth noting that on almost all of the issues just mentioned, John McCain appears to be following Bush.

The Republicans, now divided, are trying to put the Reagan coalition together again. Bush's advice is: do it my way. Use my Presidency and its commitments-- low taxes, a conservative judiciary, and national security in an age of terrorism as the party's mantra going forward. To know what the Republicans stand for, look at what I stand for.

Today the Senate voted 51-45 to adopt the Conference Committee's intelligence authorization bill. Included in that bill is section 327, a Feinstein Amendment that would require all agencies of the U.S. government, not simply the military -- to limit interrogation techniques to those identified in the Army Field Manual. Section 327 reads as follows:
SEC. 327. LIMITATION ON INTERROGATION TECHNIQUES.
(a) LIMITATION.—No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.
(b) INSTRUMENTALITY DEFINED.—In this section, the term ‘‘instrumentality’’, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.Only five Republicans voted for the bill--Senators Collins, Hagel, Lugar, Smith and Snowe.

Who could have imagined this history lesson would ever again be necessary? Or that photographs of the Vice President and Attorney General of the United States will one day appear in such histories?

NPR

Evan Wallach

Malcolm Nance

Wikipedia

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

Over at the Washington Post, Eugene Robinson gets what is at stake in the 2008 election-- a reconstructive presidency:

Obama's candidacy not only threatens to obliterate the dream of a Clinton Restoration. It also fundamentally calls into question Bill Clinton's legacy by making it seem . . . not really such a big deal.

That, I believe, is the unforgivable insult. The Clintons picked up on this slight well before Obama made it explicit with his observation that Ronald Reagan had "changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not."