Waterboarding

To the Editor:
Re: “Mukasey displays independence an attorney general needs”

Catherine McClure’s editorial lauds President Bush’s nominee for attorney general as having that ”deciding factor” necessary to a fair and just appointment confirmation: “independence from the Bush administration.” Rhetorically, the reader is asked to agree with her conclusion that Michael Mukasey’s decisions are “thoughtful and ultimately compelling.” Why? Because “generally commentators have described” them this way. Notwithstanding her credentials as a seasoned lawyer (what is described as “ethos” in compositional studies), we also need some concrete evidence here, some “logos.” Some facts. Who are these “commentators?” If I’m to be persuaded, I need to know upon what or whose authority they draw. The only real evidence she cites is idle opinion, in this case, her own. Syntactically, it looks pretty on the page, but it says little. Effective writing, writing that persuades, requires critical thinking. This means having a carefully thought out argument backed by some credible outside sources. If she had named but one of the “political and legal pundits “ that have written “many columns” on Mukasey’s “suitability” we might begin to be convinced. Her conclusion, “All indications are that Michael Mukasey has the independence to provide credible leadership,” rings hollow in that the only “indications” she’s cites are her own general impressions.

McClure’s writing aside, I disagree with her thesis that Mukasey’s ideological stance is an indicator of his independence from the Bush White House. His testimony before the Senate reflects a political philosophy that sees executive power as having the capacity to super-cede the authority of Congressional controls. The implied peril in Mukasey’s on record quote, “I would certainly suggest that we go to Congress whenever we can” is that the unasked question (what about when we can’t?) threatens the system of checks and balances that lie at the very core of the Constitution. As attorney Herbert Shafer points out, “Absolute executive power leads, ineluctably, to tyranny. The notion that the executive can unilaterally ‘trump’ legislative enactments is anathema to the Constitution.”

What is perhaps most troubling about Mukasey’s nomination is his position on torture. Given that the Geneva Convention’s Common article 3 prohibits the humiliating and degrading treatment of prisoners, it is particularly disturbing that a justice familiar with interrogation techniques would be ignorant of waterboarding (a form of torture with a long pedigree). After Senator Sheldon Whitehouse described exactly how waterboarding works, Mukasey couldn’t be certain that Whitehouse’s description constituted torture. Like pornography, it shouldn’t take much of a moral compass to know what torture is! The very idea of framing the issue as a question of semantics is unconscionable. Gabor Rona, international legal director of Human Rights First, is right in suggesting that, “He seems to be leaving room for the argument made in the torture memos that the executive does have room to violate the Geneva Conventions.” Mukasey’s thoughts on the scope of executive power, and his willingness to consider the place of torture in a civilized society, are reasons enough to find another candidate for the next attorney general.

Based on my research in analyzing Ms. McClure’s argument, I would recommend that the Senate reject the Mukasey confirmation with all due haste.

Randall L. Tessier
Lecturer II, Comprehensive Studies Program
University of Michigan