October 30, 2007

Dem Prez Candidates Find Unanimity - Opposing Presidential Authority!

Hatched by Dafydd

Sen. Barack Obama (D-IL, 95%), Sen. Hillary Clinton (D-Carpetbag, 95%), and ex-Sen. John Edwards have three things in common:

  • Each is a current (or former) member of the Senate;
  • Each is running for president... a.k.a. "chief executive";
  • Each claims he wants presidential power curtailed, making the president little more than a congressional catspaw.

How's that last one again? I think Hillary expressed it best (with a hat tip to Real Clear Politics):

The Attorney General is the chief defender of the rule of law in our country. After Alberto Gonzales's troubled tenure, we cannot send a signal that the next Attorney General in any way condones torture or believes that the President is unconstrained by law.

What exactly does this mean? The Democrats made the meaning explicit a few days ago, as we faithfully reported in Mucking About With Mukasey: When Democratic senators write "condones torture," you should read "refuses to declare the use of waterboarding anathema, forbidden under any or all circumstances, no exceptions."

Attorney General Designate Michael Mukasey, in his Senate confirmation hearings, has so far refused to declare waterboarding to be torture or to agree to forbid the president to order it (though how Mukasey -- who works for the president, not the other way around -- could enforce such a ban is left hanging). Thus, Clinton and Obama have both declared they will not vote to confirm him. Can't have an Attorney General who thinks the president is "unconstrained by law!"

But wait -- how is waterboarding related to the "rule of law," of which the Attorney General should be "the chief defender?" No bill declaring waterboarding to be an act of torture has ever been enacted into law in the United States. In fact, Congress has never sent such a bill to the president to be vetoed. While "torture" is banned, it is left up to the president to determine how to execute that law -- specifically, to determine what does and does not constitute torture, using broad guidelines contained in various acts and treaties.

But these Democratic candidates want to remove that task from the president's plate. Rather, they want the president's understanding of the laws banning torture -- Title 18, part I, chapter 113C, § 2340 of the United States Code, for example -- to shift with every shift of the majority wind blowing from Congress, without the tedious necessity of Congress passing bills that the president is willing to sign... or (in a pinch) overriding the president's veto.

What these candidates demand is that President Bush declare waterboarding torture for no other reason than that a majority of Congress considers it torture -- as if the president himself should have no say in the matter. The so-called Commander in Chief and Chief Executive becomes a congressional spokesman, fit only to echo the understanding of the law as enunciated by congressional leaders.

The president thus becomes Chief Executive Secretary to the majority leader of the Senate and the squeaker of the House.

On a related point, recall that Democratic senators routinely ask judicial nominees, during their confirmation hearings, how they will rule on various cases. In particular, they invariably ask nominees to federal district courts, circuit courts, and the Supreme Court whether they will uphold a woman's "right" to get an abortion, with the clear understanding that if they will not, or if they refuse to answer, that senator will oppose their confirmation. This is just as improper as demanding that an incoming Attorney General agree to congressional policy decisions that will bind the president as a condition of his confirmation; and it indicates a very disturbing pattern:

Democrats evidently believe that, while we have three coequal branches of government, one is more coequal than the others.

But it's not just my inference here; we can take the direct word of John Edwards. While Edwards has become almost a fringe candidate, he speaks for a great many other Democrats in the Senate and House. In his own statement rejecting Mukasey (though he has no say in that question), he included this paragraph:

Mukasey has also said that the president doesn't necessarily have to abide by acts of Congress. We need an Attorney General who will put the rule of law above the administration's short-term political interests, and Mukasey has already shown that he's unwilling to do that.

Sadly, Edwards actually appears to believe that a president must "abide by acts of Congress"... all of them. (The statement makes no sense unless we assume that Edwards meant to allow no exceptions; if exceptions are allowed, then anything can be an exception!) But what if a runaway Congress enacts a patently unconstitutional law? Must the president abide by it anyway?

Here is the scenario: Suppose John Edwards becomes president; and because of the Silky Pony's feckless policies, we are hit with another terrorist attack -- but this one is a widespread, distributed attack on America's malls. In 12 Gallerias across the country, a series of coordinated bombings kill 23,000 last-minute shoppers during Christmas week.

Al-Qaeda swiftly claims credit for the attacks, and within a couple of days, the attacker are identified; all are Arab Americans. In a spasm of rage, Congress passes a law ordering the immediate arrest and detention of all Americans of Arabic descent. President Edwards valiantly tries to stop the madness, but Congress overrides his veto.

He is now faced with a constitutional crisis: The act is clearly unconstitutional and should be overturned when the courts get around to hearing it. But they're in no hurry, just as they were not in 1942. So should President Edwards go ahead and implement this obviously unconstitutional act of Congress? Or should he exercise his authority -- and duty -- as a coequal branch of the government to ignore the act, on his own authority?

The point of the exercise is that "the law" is not solely determined by statutory law enacted by Congress: It also includes the Constitution, the bedrock law of our government, along with caselaw.

Likewise, Congress is not the sole arbiter of what the Constitution and the law require, either. The Supreme Court obviously plays a role; but so too does the president, in his capacity as the executor of the laws of the land -- including the most basic law, the Constitution of the United States of America.

But while Congress seems willing to include the Court into the club of those who get to determine what is constitutional, it is equally pleased to include the president out of that fraternal order. And since many senators also believe they should only confirm judges who agree in advance to decide certain cases in favor of the senator's position, these members of Congress quite clearly believe that Congress should be preeminent in determining what "rule of law" means. This tendency crosses party lines, by the way; cf. Sens. Arlen Specter (R-PA, 43%), Lindsay Graham (R-SC, 83%), and everyone on the Gang of Fourteen.

This is almost an attempt at a slow-moving, bloodless coup d'état... well, "bloodless" in the sense that they do not openly espouse killing the president; but they do push policies that are likely to get a lot of Americans killed, in the guise of protecting their "civil liberties." From Hillary again:

We need to restore the nation’s confidence in the Department of Justice. The Department must once again defend our Constitution and the rule of law without regard to ideology and partisanship. And we need to protect the country from terrorism while also respecting Americans’ civil liberties.

It's not quite clear to me how waterboarding Khalid Sheikh Mohammed -- a Kuwaiti on the lam, who was captured by Pakistani troops in Rawalpindi, Pakistan, with or without CIA participation, and was transferred to CIA custody -- impacts "Americans’ civil liberties." Perhaps Hillary Clinton will elaborate when she's asked that tough question during tonight's Democratic candidates' debate. [Note for the irony impaired...]

In fact, I do not believe there is any evidence that any American citizen or legal resident has ever been waterboarded in order to obtain information. However, we have waterboarded many American soldiers and CIA interrogators as part of their training for either resisting that interrogation technique (in the case of soldiers) or using it on captured terrorists (in the case of CIA interrogators).

Also, at least one reporter, Fox News Channel's Steve Harrigan, voluntarily underwent three of the reputed five stages of waterboarding for a video report. Harrigan pronounced it "torture," but he also noted that just a few minutes after each session, he felt perfectly fine -- which makes his pronouncement a bit dicey, as all definitions of psychological torture I've seen, including the legal one above, require "prolonged mental harm" resulting from the session.

Others who have undergone it, including many military and CIA personnel, say it's not torture. The point is not to prove one way or another (though I believe it is not torture, and I would happily undergo it just out of curiosity) but to prove a much easier point: That waterboarding is a controversial issue with people of good faith and strong experience landing on both sides.

In other words, it's a perfect candidate for a case by case determination whether it's legitimate to use waterboarding to obtain intelligence information, based upon the criticality of the information sought, the particular person it's sought from, and any prevailing exigent circumstances. Implementation like this is precisely the purview of the Executive branch, not the Legislative -- which creates one size fits all rules for everyone -- or the Judiciary -- which decides ex-post facto whether information gathered can be used at trial; nobody has ever attempted to use a "confession" obtained by waterboarding in court as evidence at the confessor's criminal trial.

Whether or not to use waterboarding to obtain critical intelligence is a job for Super President, not Glacially Ponderous Judge or Mealy-Mouthed Congressman. But to the top three Democratic candidates for Chief Executive Secretary of the United States Congress, branches one and two need only ask Congress what they think, and then rubber-stamp the congressional leadership's decision... the president as puppet.

I wonder: How much of this do they truly believe and would actually follow through on if elected... and how much is just electoral hype in the never-ending Democrat hit single, "The Bushies Have Bushwhacked America"?

Hatched by Dafydd on this day, October 30, 2007, at the time of 6:26 PM

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The following hissed in response by: Terry Gain

It's effect upon the mind is very transient. It has no effect upon the body. It is universally effective. It's not torture and if a terrorist had knowledge which would save lives if revealed, it would be immoral not to use it.

The above hissed in response by: Terry Gain [TypeKey Profile Page] at October 30, 2007 7:57 PM

The following hissed in response by: Terry Gain

It's effect upon the mind is very transient. It has no effect upon the body. It is universally effective. It's not torture and if a terrorist had knowledge which would save lives if revealed, it would be immoral not to use it.

The above hissed in response by: Terry Gain [TypeKey Profile Page] at October 30, 2007 7:58 PM

The following hissed in response by: LarryD

Ever see a scene like this in a move or TV show?

Person A hauls person B over to a barrel or trough of water. A shove B's face into the water, usually repeatedly.

That's the basic idea behind waterboarding. Waterboarding elaborates it, using less water, and I understand a medic is handy (though not obvious), just in case.

The above hissed in response by: LarryD [TypeKey Profile Page] at October 31, 2007 6:47 AM

The following hissed in response by: Big D

The definition of torture is fairly simple. It is any activity that results in prolonged physical or psychological damage. By that definition, water boarding, while unpleasant, is not torture. Not any more than keeping someone awake, shining a bright light in their face, speaking harshly to them, mild electric shocks, etc.

Listening to Dems, however, is torture, in that I fear it has permanently damaged the ability of many people to think.

The above hissed in response by: Big D [TypeKey Profile Page] at October 31, 2007 9:54 AM

The following hissed in response by: hunter

The dhimmies are dedicated to defeating America at whatever price they wish to force us to pay.
I decline their offer.

The above hissed in response by: hunter [TypeKey Profile Page] at October 31, 2007 10:10 AM

The following hissed in response by: Doc-obiwan

I've been waterboarded, while going through Special Forces training (US Army) years ago. It is definitely not fun. It is definitely uncomfortable. It is definitely terrorizing. It is definitely not torture.

The above hissed in response by: Doc-obiwan [TypeKey Profile Page] at October 31, 2007 11:47 AM

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