The Constitution: It’s a Loophole!

The love-fest between Senate Democrats and Attorney General nominee Michael Mukasey drifted onto the rocks today, as Mukasey declined to join in the Judiciary Committee’s bash-Bush agenda. Meanwhile, the mainstream media’s appallingly bad coverage of the committee hearing continued. Here is how the Washington Post began its story, which was headlined “Mukasey Endorses Expansive Presidential Authority”:

Attorney general nominee Michael B. Mukasey suggested today that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief.

This is a non-controversial proposition. Of course the President can ignore a law that infringes on his constitutional authority, just as Congress can ignore an executive order that infringes on its powers. The Post continues:

Under sharp questioning about the Bush administration’s warrantless eavesdropping program, Mukasey said there may be occasions when the president’s wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps.
In such a case, Mukasey said, “the president is not putting somebody above the law; the president is putting somebody within the law. . . . The president doesn’t stand above the law. But the law emphatically includes the Constitution.”

Judge Mukasey tried to give the Senate committee a lesson in constitutional law–the branches of government are equal, and therefore Congress can’t take away the President’s powers–but it was pearls before swine. Dim bulb Patrick Leahy didn’t get the point:

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was “troubled by your answer. I see a loophole big enough to drive a truck through.”

There you have it! The Constitution: it’s a loophole!
The conversation turned to “torture,” and the Senators wanted Judge Mukasey to denounce waterboarding:

Mukasey also demurred when he was repeatedly asked whether a simulated drowning technique known as waterboarding constitutes unlawful torture.

The point is significant, because “torture” is illegal. So it becomes important to define “torture.” The Democrats are desperate to classify waterboarding as “torture,” because that would make it improper. As I’ve written before, I think waterboarding is the most appropriate method of interrogating terrorists. It is nearly always effective; it takes only a few minutes; and it is physically harmless. It doesn’t hurt the terrorist a bit, but it scares him into talking. That seems like the perfect way to interrogate terrorist suspects. If you want to contrast “waterboarding” with “torture,” take a look at al Qaeda’s torture manual, which explains how to scoop out eyeballs with spoons, use electric drills to maximum effect, etc.
The Associated Press had more on waterboarding:

“I’m hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding,” said Sen. Dick Durbin, D- Ill.
“It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else,” Mukasey answered.
During terse questioning by Sen. Sheldon Whitehouse, D-R.I., Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.
“If it’s torture?” Whitehouse responded incredulously. “That’s a massive hedge. I mean, it either is or it isn’t.”

Left unaddressed by the Democrats, as always, is how we are supposed to get information from captured terrorists. If anything that a terrorist suspect finds inconvenient or unpleasant constitutes “torture,” even if it lasts for only a few minutes and does no physical harm, interrogation is essentially impossible. It will be interesting to see whether this interpretation of the law is adopted by the Hillary Clinton administration, should it inherit responsibility for keeping Americans safe from terrorist attacks.


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