Democrats Surrender on Defending the Constitution

Today's NYT article on Cheney, Addington, Gonzales, Bradbury and the secret policies of torture are really incredibly shocking and yet expected all at once, as The Editors say. What you have is essentially a second torture memo to replace the John Yoo memo invalidated by Congressional and legal action.

This new memo, signed by the new head of the Office of Legal Counsel, Steven G. Bradbury, endorsed "the harshest interrogation techniques ever used by the Central Intelligence Agency." According to the Times report, this memo-- what I will call Torture Memo 2.0-- "for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."

The twisting of law by the Justice Department under Alberto Gonzales is far worse than Gonzales' misleading testimony in front of Congress about the U.S. Attorney scandal. That scandal dominated the headlines for weeks. This one deserves far more searching press scrutiny. Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

Really, the Justice Department reacted to their law being tossed out by finding a new way around the law. Which is what makes Patrick Leahy's capitulation to the Administration with respect to confirmation hearings on Michael Mukasey all the more distressing.

Now, Mukasey had nothing to do with the Wild West show that was the DoJ under Abu G. But this Administration was clearly deeply involved. And this nomination should have extracted a price. At the very least, Leahy should have demanded the relevant documents and congressional testimony relating to the US Attorney scandal, all of which were under subpoena. With today's revelations, even more should have been demanded, all the way up to a special prosecutor to look into the disarray that was the Justice Department. But instead, all is forgiven.

In a letter to the nominee released yesterday, Leahy complained that "the White House has chosen not to clear the decks of past concerns," including Democratic demands for documents and testimony about the firing of nine U.S. attorneys.

"I had hoped that the White House would . . . work with us to fulfill longstanding requests for information so that we could all agree about what went so wrong at the Department of Justice and work together to restore it," Leahy wrote in the letter. "Instead, they have left you to answer the unanswered questions and left longstanding disputes unresolved."

The remarks indicated an end to Leahy's attempt to use the Mukasey nomination to pry loose sensitive information from the White House about the prosecutor firings, the government's warrantless surveillance program and other issues. Leahy's office has been in intensive negotiations with White House counsel Fred F. Fielding since President Bush named Mukasey as the nominee three weeks ago, but no agreement has been reached.

There's absolutely no reason for such comity. The Justice Department has been found to be repeatedly breaking the law on a variety of fronts, torture being notable only because it's the most recent. There simply aren't any other leverage points that the Democrats can use to get to the truth of the matter. And it's far better to have this information now, while these criminals are still in office, than to discover it over a period of decades. But Leahy caved in rather than face this showdown. He'll ask tough questions and send strongly worded letters, and in the end Mukasey will be confirmed and that will be that.

I don't know how many different times you have to say "stand up" before these guys get the message. Here's one way to stand up, from Chris Dodd.

"The law is crystal clear - torture is illegal. It is 'abhorrent' that the Bush Administration would publicly disavow torture, while its Office of Legal Counsel is secretly interpreting settled law to reach the opposite conclusion. It is imperative we understand the extent of this deception. The Office of Legal Counsel must release how many other secret opinions they have produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

"Congress's Constitutional authority is the power of the purse. And should the Justice Department not comply, I intend to use that authority by drafting legislation defunding the Office of Legal Counsel."

OLC is kind of an inside baseball deal - getting at the Attorney General nominee was the way to go. But the Democrats played toreador and let the bull charge through.

UPDATE: You should all sign this pledge.

We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power.

I pledge to fight to protect and defend the Constitution from assault by any President.