Democrats Drowning In Hypocrisy

National Review Online: Party Opposes Unchecked Power — Unless Clinton Wants It

(National Review Online)  This column was written by Andrew C. McCarthy.

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The “ticking bomb scenario” represents a narrow exception to what should otherwise be our categorical prohibition against torture. After all, “in the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans,” it might be necessary for a president to make “the decision to depart from standard international practices[.]” The president, of course, “must be held accountable” for such a decision; but the president would have to be prepared to make it in such dire circumstances.

Who says so? Senator Hillary Rodham Clinton, that’s who. The Democrats’ coronee-in-waiting made the comments in an interview by the New York Daily News last October.

As is the senator’s wont (see, e.g., myriad positions on Iraq, Iran, illegal immigration, etc.), she has since flipped from this flop - just in time for a candidates’ debate before a base inherently hostile to such flashes of common sense. But she clearly made the remarks. It was thus jarring to find her announcing opposition on Monday to Judge Michael Mukasey’s nomination to become the next attorney general because, as Sen. Clinton explained, “I am deeply troubled by Judge Mukasey’s continued unwillingness to clearly state his views on torture and unchecked Executive power.”

As it happens, Judge Mukasey’s views on torture and “unchecked Executive power” are a lot clearer than Hillary Clinton’s.

In a letter submitted Tuesday, Mukasey responded to additional questions about waterboarding raised by Democrats on the Senate Judiciary Committee. Though not informed of the classified details of any enhanced interrogation practice, the judge said the tactic of waterboarding, as portrayed by the senators, seemed to him to be over the legal line, as well as “repugnant.” He held out the possibility that, once apprised of the concrete details of any actual waterboarding practiced by American interrogators, he might very well conclude the tactic violated the federal anti-torture statute (Section 2340 of Title 18, U.S. Code). Such an analysis would make it unlawful, without exception, in all circumstances.

Moreover, even if waterboarding were found not to meet the statutory definition of torture, Judge Mukasey indicated that the tactic would still be illegal except in the rare instance when its use did not “shock the conscience” - the Supreme Court’s due-process test which Congress incorporated in banning “cruel, inhuman and degrading treatments” that fall short of torture.

So Judge Mukasey has essentially said that waterboarding might be torture and would, in any event, be illegal in all but the most dire emergencies. Senator Clinton, to the contrary, has said a president could order not just waterboarding but torture, despite a congressional statute and treaty obligations that brook no exceptions. Yet, Democrats are questioning Mukasey’s fitness even as they trip over themselves to hop aboard Clinton’s bandwagon.

Naturally, at the front of that bandwagon they will find former President Bill Clinton. He, too, weighed in last October, contending that a president has the power to order torture or waterboarding in a dire emergency. As Harvard Law Professor Alan Dershowitz recounted in a New York Sun op-ed, upon being asked whether the president needs “the option of authorizing torture in an extreme case,” President Clinton responded (italics are mine):

Look, if the president needed an option, there’s all sorts of things they can do. Let’s take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal. We have a system of laws here where nobody should be above the law, and you don’t need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.

This, apparently, is the Democratic standard for clear, unequivocal opposition to torture … as long as you’re a Democrat.

Even for jaded veterans of Washington hypocrisy, the disingenuousness of the Democrats’ Mukasey critique is nothing sort of astounding. Senator Clinton and others are worried about the judge’s embrace of unchecked executive power? Are we supposed to pretend that the 1990s never happened?

Let’s not relive the myriad scandals, the countless claims of newfangled executive privileges to stonewall investigations, the claims that the president was above the law for purposes of civil suit, the lying, the obstruction of justice, and so on. Let’s stipulate for argument’s sake that they’re irrelevant. Let’s just stick with the executive-power issue the Democrats are homing in on: the Bush administration’s warrantless surveillance program which Democrats contend was unlawful because it was conducted in violation of the Foreign Intelligence Surveillance Act (FISA).

FISA is a 1978 statute that attempted to limit the president’s power to order monitoring of foreign agents, including terrorists, who might pose a threat to the American people. The president’s authority in this area, however, comes from the Constitution. The Constitution cannot be changed, and its enumerated powers cannot be diminished, by a statute.

Who says so? Prominent Democrats say so. And the Clinton administration expressly said so.

Just this morning, the Wall Street Journal features an op-ed about FISA reform signed by, among others, Benjamin Civiletti, who served as attorney general under President Jimmy Carter. Civiletti writes:

Prior to FISA’s 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation’s security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president’s constitutional powers.

Civiletti is correct. The very court created by Congress in FISA has indicated that the president, despite FISA, maintains the authority to order surveillance against foreign threats to national security without seeking permission from a federal judge.

In this, Civiletti and the FISA Court of Review simply echo the analysis of another Carter attorney general, Griffin Bell. At the time of FISA’s enactment, Bell explained in congressional testimony: “The current [FISA] bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution” (emphasis added).

FISA was amended in 1994 to give the FISA-court jurisdiction over not only eavesdropping but physical searches. The amendment was prompted by the Clinton administration’s execution of physical searches without warrants - in reliance on what, in President Clinton’s view, was the inherent power of the president to protect national security.

Confronted by the amendment, then-Deputy Attorney General Jamie Gorelick was dutifully dispatched to explain the Clinton administration’s views to Congress. As National Review’s Byron York recounted, Gorelick testified (italics mine):

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes … and that the President may, as has been done, delegate this authority to the Attorney General.”

“It is important to understand,” Gorelick continued, “that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

In connection with the tension between FISA and presidential power, Judge Mukasey has filed still another post-hearing letter, responding to questions from Judiciary Committee Chairman Patrick Leahy. The submission thoroughly and ably assesses the applicable law - in which the only significant development since Gorelick’s testimony is the FISA Court of Review’s reaffirmation of presidential authority. Mukasey concludes that presidents maintain their Article II powers despite FISA. Still, he qualifies that the president does not stand above the law - in this case, the Constitution’s Fourth Amendment, which requires all searches to be reasonable.

For today’s leading Democrats, this position is somehow a call for “unchecked Executive power.” In years when the leading Democrat happens to occupy the Oval Office, though, it is what is known as the position of the Democratic party.

[logicanada]

N.R.O. Same thing as Weekly Standard. Neocon stories all written by people with names ending . . .owitz. NRO - a written version of FOX.

[quatrops]

zzzzzzzzzzzzzzzzzz . . . yawn . .

zzzzzzzzzzzzz . . yawn . . zzzzzzzzzzzzzzz ! !

Oh! . . yeah . . . where were we?

If you''re new to this site, read the first 4 or 5 posts and skip the rest. It''s just same old . . same old! Nothing new. Nothing to give anyone pause for thought. For those of us offering multiple posts, it''s usually posturing, defensiveness, and name calling. Many are just venting their rage while imagining they are being clever by finding ways to avoid being censored. Facts? Only selective ones to "prove" their point. A lot of religion-based stuff from people trying to assure themselves they have made the right faith choice. So, if you''ve bothered to read THIS post, this far, you should find something more productive to do with your time. It, too, doesn''t offer anything but the obvious. Find a good book and enjoy your weekend.

[alanrobisch]

Come On,lets show them how the american public has become aware of who the real Free-spending, perverted, incompetants are.!!!


osted by Kaliveotin at 09:34 PM : Nov 02, 2007

dems have long history of being the more liberal spenders. I have no question that the recent pub congress were big spenders much to the dismay of people like me but as far as raising taxes you haven''t been following the news about wrangel''s huge allegedly trillion dollar tax increase. Of course the taxes will be on the better off so the dems can still get the vote of those who don''t like people who make a success of themselves unless its the dems themselves like the kennedy''s and certain rockefellers who didn''t have to work for their money they just inherited it.

Also note the deficit is steadily going down and in clinton''s last term was one of the few times in modern times we actually had a balanced budget and this was because we raised taxes and because pubs did try to control spending and we reduced the size of the military

[rafterman1]

===It''''s amazing... liberals weeping themselves silly because we waterboarded a bunch of terrorists and chucked a Koran in the toilet... Of course, you don''''t hear any outrage over the various beheadings they broadcast or for that matter the infinitely more brutal level of torture, rape & murder conducted by Saddam & Sons or anyone else for that matter===
posted by dogsoul

I don''t care what the terrorists do. I do care what Americans do and to demean ourselves by torturing is un-American. The terrorists also ram planes into buildings and kill civilians. Should we do that too because the terrorists do?

[kaliveotin]

The Publicans say Democrats will raise taxes and increase spending, and democrats are supposed to be the hypocrits ? Really? Eventully taxes will have to pay for our Two-Trillion dollar war. We''re already paying millions for the interest on the loans from China, Japan and other natios. The Republican use hatred of *** and pornography to suck in stupid voters (even though the numbers of Republican perverts has long been established) and Democrats are supposed to be the Hypocrits ? Really?
George Bush said he was going to be the "Eucation President" and Democrats are supposed to be the hypocrits, Come On,lets show them how the american public has become aware of who the real Free-spending, perverted, incompetants are.!!!

[quatrops]

ZZZZZZZZZZZZZZZZZzzzzzzzzzzzzzzzzzzz.

Yawn.

[alanrobisch]

2. Regardless, he LOVES you anyway, because Jesus Christ SAID he should. It may be that "tough love" that politicly correct psychologists are so fond of lately, but anyway, go with it!

osted by Quatrop

s at 09:08 PM : Nov 02, 2007

apparently I''ve gotten your attention. Maybe just maybe you will have an intellectually honest debate. the person I was calling ignorant and biased was essentially attacking with a viscious and false attack all conservatives. For this I called him biased and ignorant. Its hard to argue with venting of that kind because there are no facts to debate or ideas to discuss.

[quatrops]

Look out folks! Robisch has surfaced again, and he''s taking himself seriously! I suspect you know this already, Terrapin, but just in case:

1. Robisch has judged quite a number of us as "ignorant". It isn''t exactly clear where he gets the qualifications to make these judgements, but anyway, you have lots of company. It may have something to do with his belief that the Bible is the inerrant word of God because the Bible SAYS it''s the inerrant word of God. If THAT exercise in logical processes troubles you, then GOOD! That means you''re NORMAL.

2. Regardless, he LOVES you anyway, because Jesus Christ SAID he should. It may be that "tough love" that politicly correct psychologists are so fond of lately, but anyway, go with it!

[alanrobisch]

They hate everything that America was admired for in the rest if the world. And they have tried to destroy it at every turn.


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Posted by Terrapin78 at 09:00 AM : Nov 02, 2007
+ report abuse

this comment proves how ignorant and biased you are

[quatrops]

Dogsoul? What an appropriate name, considering the civility of his rhetoric. My Fido is a touch ticked off by the appropriation however.

[korinsha]

"and frankly, liberals would gladly accept... no make that eagerly welcome with open arms a defeat in Iraq or even a deadly terror attack against our own citizens if it means they get to have a liberal in the White House... " Wow. Who needs independant thought, we got Madame Cleo over here. By the way, you''re wrong. The unfocused, nonsensical rage and blind prejudice is cute, though.

[korinsha]

*gasp* Politicians drowning in hypocrasy?! What a shock! Unheard of! Say it ain''t so! *eyeroll* They''re all hypocrites, just vote for whoever hides it the best, or throws up the shiniest distractions.

[dogsoul]

It''s amazing... liberals weeping themselves silly because we waterboarded a bunch of terrorists and chucked a Koran in the toilet... Of course, you don''t hear any outrage over the various beheadings they broadcast or for that matter the infinitely more brutal level of torture, rape & murder conducted by Saddam & Sons or anyone else for that matter....

Bottom line is that it''s got very little to do with how liberals feel on the concept of torture, it never did - it''s got EVERYthing to do with them trying to bring down George Bush... and frankly, liberals would gladly accept... no make that eagerly welcome with open arms a defeat in Iraq or even a deadly terror attack against our own citizens if it means they get to have a liberal in the White House... as such, aiding the enemy by making it more difficult to stop them - and having the audacity to claim it''s out of some kind of ''loyalty'' to our beloved constitution, interantional law, or (cough) morality is simply laughable. Much like their ally Al Queda, the end reward of entering their own version of the pearly white gates justifies whatever means will get them there...

[Netterz]

Since when arent they ALL drowning in it? BOTH parties are hugely guilty of this... how in the H#LL do you think they get elected in the 1st place? I dont think I was even born yet, atleast not that I remember when polititions actually did the things they promised while trying to get votes. CAN YOU? I doubt it. These rats will do and say ANYTHING to get elected. They need to all be shoved off there pedestals an bring in new blood. Thats the ONLY way to solve whats going on. we have had about 25 years of both Clintons and Bush''s in the White House. Havent they both done enough damage?!?!?

[naturaltwo]

LOL. There is no difference between republicans or democrat. Andrew is just a Nazi fooling himself that he is not.

Andrew is just as guilty of crimes against America As Osama and should be hung by the neck until dead.

He is scum. He has enjoined in a criminal conspiracy to loot the country''s treasury and pit brother against brother.

Why isn''t Andrew over in Iraw defending his beliefs? because he is just another disgusting republican coward.

Unfortunately it will be his progeny who pay for his crimes and sins.

[terrapin78]

Condaleeza Rice for President !!

(What, don''''''''t want a woman for president?)

Posted by mocalleo at 10:22 AM : Nov 02, 2007


She is not disqualified because she is a woman but because SHE IS A BU$H mis-ADMINISTRATION member.

That should disqualify all with that on their resume for life!!!

[rafterman1]

What the NRO fails to point out is, giving Bush unfettered power, without oversight (thanks to the Republican party and it''s shills, like the NRO) has set the precedent for presidential power. Once presidential power is given, it is hard to get it back. If Hillary becomes the new overlord, it is the Republican''s own fault. They set the precedent of president-as-king.

[mocalleo]

Condaleeza Rice for President !!

.

Attacking Hillary is no different than any other person being attacked
that''s running for president.

It''s called equal rights & equal TREATMENT

Get used to it.....welcome to politics.

.

Condaleeza Rice for President !!

(What, don''t want a woman for president?)
I know, a specious argument, but that''s my point.

.

[taddles-2009]

Once again Andrew, your logic is flawed and your analysis poor at best. You fail basic logic 101 rules. But then we can''t expect much better from the NRO.

[quatrops]

Last I heard, Feinstein is still "on the fence" about Mukasey.

TORTURE IS TORTURE!

Come on, fellow California dems. Go NOW to her website and let her know your opinion. It only takes a minute!

E-mail from other states will get thru too! And yes, even the millions of pre-neo-con conservative, moral Republicans are welcome!

Hmmm. Sadly amusing. Prior to Bush/Cheney, "moral Republican" used to be relatively redundant! I guess Cheney''s "Go f--- yourself, Senator" set a new standard for civil discourse and propriety in the GOP. It shouldn''t be a surprise that they have gleeful support from the likes of roadking041 and his ilk.