The Stench of Torture

Law professor Marty Lederman blogs: "There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment."

But, he writes "Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise."

Presidential Power

Here are all the written questions submitted to Mukasey by various Senate Judiciary Committee members since his confirmation hearing. Here is Mukasey's response to the first letter from Committee Chairman Patrick Leahy (D-Vt.), about presidential power.

The USA Today editorial board writes that Mukasey's views on torture are important but "of far greater concern, is what Mukasey said about the limits of presidential power. While the president cannot act illegally, he said, 'illegal' is a fuzzy concept when it comes to the president.

"The nominee asserted that the president has broad and ill-defined powers to ignore a law when he believes his constitutional authority to defend the nation empowers him to do so. Senate Judiciary Chairman Patrick Leahy, D-Vt., described this as 'a loophole big enough to drive a truck through.' . . .

"[B]efore the Senate confirms Mukasey, it should be confident that he stands unequivocally for the principle that no American is above the law, not even the president."

Former White House associate counsel Bradford A. Berenson writes in a USA Today with an opposing view: "To say, as Judge Mukasey has, that the president has certain inherent powers over military and intelligence matters that Congress might not be able to regulate or take away is nothing more than an acknowledgment of constitutional reality. Nor should he be faulted for refusing to render snap legal judgments about classified interrogation methods without access to either the facts or the existing legal analysis of the department he has been nominated to lead."

Adam Cohen writes in a New York Times opinion piece: "President Bush's nominee for attorney general, Michael Mukasey, was asked an important question about Congress's power at his confirmation hearing. If witnesses claim executive privilege and refuse to respond to Congressional subpoenas in the United States attorneys scandal -- as Karl Rove and Harriet Miers have done -- and Congress holds them in contempt, would his Justice Department refer the matter to a grand jury for criminal prosecution, as federal law requires?

"Mr. Mukasey suggested the answer would be no. That was hardly his only slap-down of Congress. He made the startling claim that a president can defy laws if he or she is acting within the authority 'to defend the country.' That is a mighty large exception to the rule that Congress's laws are supreme.

"The founders wanted the 'people's branch' to be strong, but the Bush administration has usurped a frightening number of Congress's powers -- with very little resistance. The question is whether members of Congress of both parties will do anything about it."

Fundraising Watch

Thomas Fitzgerald writes in the Philadelphia Inquirer: "Trailing his dismal approval rating, President Bush swept into the Philadelphia suburbs yesterday, to the consternation of some Republicans facing tight county elections next week.

"Bush was in Bryn Mawr to raise money for the state party's 2008 campaign fund, but some regional GOP leaders fretted about the timing, since Bush is widely unpopular in Southeastern Pennsylvania and Democrats have sought to associate the party's county candidates with the White House.