A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
-- Korematsu v. United States (internment case / Justice Jackson dissenting)
The fact something occurs does not justify enabling and furthering its growth and vitality. As GG notes today, many who oppose the Mukasey nomination because of his inability to say waterboarding is torture have enable the practice, along with his support of (excessively) broad executive power for years. But, limits have merit, even if they are not enough. And, as a former supporter of Mukasey (sadly) notes, some lines cannot be passed:
In the end this is essential to national identity, and to the promise of the Justice Department to serve as a law enforcement agency. Too much of what the Justice Department has done of late has little resemblance to law enforcement. Rather it looks to be just the opposite.
If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.
This from someone, liberal leaning, who at first thought he was a sound choice ... given the fact that Bush would never nominate an ideal choice. My senator, no not the presidential nominee who I oppose (see also the reporter in the current Doonesbury story arc), the other one, however, does not see it that way:
I deeply esteem those who believe the issue of torture is so paramount that Judge Mukasey’s views on it should be the sole determinant of our vote,” Schumer said in a statement. “But I must respectfully disagree. "The Justice Department is a shambles: politicized and demoralized. The belief and hope [is] that Justice Mukasey, with his experience, independence and integrity, can restore the department motivates my vote.”
A bit better than the gentlelady from California who notes that he is better than Gonzo. [As one person noted, I'm not Gonzo either, want to pick me? I can also be a member of the NY Jets ... they can lose with me on the team too] Not by much. Apparently, he trusts M. will follow the law, even though the law clearly now bans waterboarding. Reminds one of the 10/02 assurances that Bush will interpret the "toss the drunk the car keys" resolution the same way as John Kerry would. My senator, Chuck the sanctimonious, wants to settle. How very not New York (or American, actually, given what is at stake). Torture is too symbolic apparently, since M. will help deal with the politicization of the Justice Department and help make it more professional. [Well, maybe.]
In the process, the Democratic U.S. Senate ratifies more Bush policy. We are left with discretion and "trust us." Nah, doesn't pass the smell test. BTW, John Dean reminds back in the day, when a Democratic Senate was asked to confirm the replacement of a disgraced attorney general, it insisted a special prosecutor be appointed as part of the bargain. Is this off the table too?