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The Tortured Vote of Feinstein on Mukasey

The Tortured Vote of Feinstein on Mukasey: Disingenuous or Just Plain Dishonest?


So why is Dianne Feinstein going to vote for Mukasey as Attorney General after he gave responses on waterboarding, torture and unitary authority that were right out of the White House Q and A response book?

For Feinstein, perhaps it is that she is a disingenuous RepubliCrat. She has defected the Democrats on more key votes in the senate and the Judiciary Committee than you can shake a stick at. Most recently, she was the sole Democratic defection on Judiciary that allowed the nomination of the Neo-Confederate Leslie Southwick to get to the floor for a positive vote. In short, another Bush Administration bigoted partisan judge will take a seat on the federal bench because of Feinstein.

Some argue that Feinstein (who at one time was the Mayor of San Francisco, and who – along with Pelosi – makes us think sometimes that the worst thing for progressive politics is a rich SF "liberal") is essentially trading her votes for contracts that her husband receives from the government. Some argue that she is just so wealthy, Washington establishment-like, and out of touch with her obligation to the Constitution, that she votes for people whom she feels are of the same "class" of D.C. insiders as she has become.

But what most disturbs us about the Feinstein pledge of support for Mukasey is a commentary she had published in the LA Times on November 3 providing the "rationale" for her vote. There’s only one big problem with Feinstein’s message to the voters; it’s specious at best.

Feinstein quotes Makasey to show how he is allegedly opposed to the Bush Administration using waterboarding:

"I do know ... that waterboarding cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (DTA). That is because waterboarding and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense (DOD) or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the manual."

Then Feinstein comments, "As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations."

There’s the rub, Dianne, since "waterboarding" as apparently conducted by the Bush Administration is carried out by the CIA or "subcontractors," not technically by the Pentagon. As long as Mukasey doesn’t declare that it is illegal across the board, his response is condoning the use of waterboarding – and likely tipping his hat that other coercive techniques amounting to torture would be sanctioned by the DOJ.

Feinstein knows this full well. In fact, way back to when Ashcroft was still AG -- and the torture revelations were first breaking -- a Washington Post article reported on June 9, 2004: "Sen. Dianne Feinstein (D-Calif.) said the memo on interrogation techniques permissible for the CIA to use on suspected al Qaeda operatives ‘appears to be an effort to redefine torture and narrow prohibitions against it.’ The document was prepared by the Justice Department's office of legal counsel for the CIA and addressed to White House counsel Alberto R. Gonzales."

The reporters noted in the next paragraph: "The 50-page Justice Department memo said inflicting physical or psychological pain might be justified in the war on terrorism ‘to prevent further attacks on the United States by the al Qaeda terrorist network.’ It added that ‘necessity and self defense could provide justifications that would eliminate any criminal liability.’"

Now we are getting to the heart of Feinstein’s betrayal of justice. Mukasey’s White House scripted evasion on waterboarding and torture was designed to set him up for eventually exonerating Bush Administration officials of illegal criminal actions, once he "sees" the classified files concerning Bush Administration sanctioned torture.

Feinstein claims that it is up to Congress to close any loopholes on torture, an unlikely scenario in the foreseeable future (and she knows it), which in any case would almost certainly not be retroactive.

So Feinstein is essentially arguing that the role of the Attorney General is not to act like an Attorney General. She is helping Bush, Cheney and others receive a "get out of jail free card."

We came across two articles this weekend, at the same time Feinstein had her prepared justification for the Mukasey confirmation published, which in essence exposed her disingenuous "reasoning." An Associated Press November 4th analysis has as its very first paragraph: "Senate confirmation of Michael Mukasey as attorney general has snagged on a complex legal question of whether some Bush administration officials would face lawsuits or war crimes charges if, as Democrats insist, he defines waterboarding as torture."

In the Washington Post on Sunday, a law professor penned an op-ed entitled "Waterboarding Used to Be a Crime." Besides noting the excruciating details of waterboarding (which he says is not near-drowning, but drowning that is controlled not to end in death, even though it sometimes, of course, does), he points out that we prosecuted enemy soldiers for conducting waterboarding on captured American soldiers in WW II.

It would be laughable if it weren’t so tragic to the nation that Feinstein concludes her LA Times op-ed with this less than believable "I’m-just-a-Pollyanna-style-of-gal" statement: "The bottom line is this: I hope that Judge Mukasey will fairly and evenhandedly represent the American people and direct the Justice Department wherever the facts and the law lead, not where the White House dictates."

Of course, the clear and transparent reality is that the White House did dictate Mukasey’s answers on waterboarding and torture. They were straight from the Ashcroft, Gonzales, Addington script.

The senior senator from California should know that, shouldn’t she?

Dianne Feinstein is much too smart to play that dumb.


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