June 13, 2011 | National Review Online

Mirror, Mirror on the Wall

On torture and executive power, Democrats sing a different tune when the president is … a Democrat.

The “ticking bomb scenario” represents a narrow exception to what should otherwise be our categorical prohibition against torture. After all, “in the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans,” it might be necessary for a president to make “the decision to depart from standard international practices[.]” The president, of course, “must be held accountable” for such a decision; but the president would have to be prepared to make it in such dire circumstances.

Who says so? Senator Hillary Rodham Clinton, that’s who. The Democrats’ coronee-in-waiting made the comments in an interview by the New York Daily News last October.

As is the senator’s wont (see, e.g., myriad positions on Iraq, Iran, illegal immigration, etc.), she has since flipped from this flop — just in time for a candidates’ debate before a base inherently hostile to such flashes of common sense. But she clearly made the remarks. It was thus jarring to find her announcing opposition on Monday to Judge Michael Mukasey’s nomination to become the next attorney general because, as Sen. Clinton explained, “I am deeply troubled by Judge Mukasey’s continued unwillingness to clearly state his views on torture and unchecked Executive power.”

As it happens, Judge Mukasey’s views on torture and “unchecked Executive power” are a lot clearer than Hillary Clinton’s.

In a letter submitted Tuesday, Mukasey responded to additional questions about waterboarding raised by Democrats on the Senate Judiciary Committee. Though not informed of the classified details of any enhanced interrogation practice, the judge said the tactic of waterboarding, as portrayed by the senators, seemed to him to be over the legal line, as well as “repugnant.” He held out the possibility that, once apprised of the concrete details of any actual waterboarding practiced by American interrogators, he might very well conclude the tactic violated the federal anti-torture statute (Section 2340 of Title 18, U.S. Code). Such an analysis would make it unlawful, without exception, in all circumstances.

Moreover, even if waterboarding were found not to meet the statutory definition of torture, Judge Mukasey indicated that the tactic would still be illegal except in the rare instance when its use did not “shock the conscience” — the Supreme Court’s due-process test which Congress incorporated in banning “cruel, inhuman and degrading treatments” that fall short of torture.

So Judge Mukasey has essentially said that waterboarding might be torture and would, in any event, be illegal in all but the most dire emergencies. Senator Clinton, to the contrary, has said a president could order not just waterboarding but torture, despite a congressional statute and treaty obligations that brook no exceptions. Yet, Democrats are questioning Mukasey’s fitness even as they trip over themselves to hop aboard Clinton’s bandwagon.

Naturally, at the front of that bandwagon they will find former President Bill Clinton. He, too, weighed in last October, contending that a president has the power to order torture or waterboarding in a dire emergency. As Harvard Law Professor Alan Dershowitz recounted in a New York Sun op-ed, upon being asked whether the president needs “the option of authorizing torture in an extreme case,” President Clinton responded (italics are mine):

Look, if the president needed an option, there’s all sorts of things they can do. Let’s take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal. We have a system of laws here where nobody should be above the law, and you don’t need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.

This, apparently, is the Democratic standard for clear, unequivocal opposition to torture … as long as you’re a Democrat.

Even for jaded veterans of Washington hypocrisy, the disingenuousness of the Democrats’ Mukasey critique is nothing sort of astounding. Senator Clinton and others are worried about the judge’s embrace of unchecked executive power? Are we supposed to pretend that the 1990s never happened?

Let’s not relive the myriad scandals, the countless claims of newfangled executive privileges to stonewall investigations, the claims that the President was above the law for purposes of civil suit, the lying, the obstruction of justice, and so on. Let’s stipulate for argument’s sake that they’re irrelevant. Let’s just stick with the executive-power issue the Democrats are homing in on: the Bush administration’s warrantless surveillance program which Democrats contend was unlawful because it was conducted in violation of the Foreign Intelligence Surveillance Act (FISA).

FISA is a 1978 statute that attempted to limit the president’s power to order monitoring of foreign agents, including terrorists, who might pose a threat to the American people. The president’s authority in this area, however, comes from the Constitution. The Constitution cannot be changed, and its enumerated powers cannot be diminished, by a statute.

Who says so? Prominent Democrats say so. And the Clinton administration expressly said so.

Just this morning, the Wall Street Journal features an oped about FISA reform signed by, among others, Benjamin Civiletti, who served as attorney general under President Jimmy Carter. Civiletti writes:

Prior to FISA’s 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation’s security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president’s constitutional powers.

Civiletti is correct. The very court created by Congress in FISA has indicated that the president, despite FISA, maintains the authority to order surveillance against foreign threats to national security without seeking permission from a federal judge.

In this, Civiletti and the FISA Court of Review simply echo the analysis of another Carter attorney general, Griffin Bell. At the time of FISA’s enactment, Bell explained in congressional testimony: “The current [FISA] bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution” (emphasis added).

FISA was amended in 1994 to give the FISA-court jurisdiction over not only eavesdropping but physical searches. The amendment was prompted by the Clinton administration’s execution of physical searches without warrants — in reliance on what, in President Clinton’s view, was the inherent power of the president to protect national security.

Confronted by the amendment, then-Deputy Attorney General Jamie Gorelick was dutifully dispatched to explain the Clinton administration’s views to Congress. As National Review’s Byron York recounted, Gorelick testified (italics mine):

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes … and that the President may, as has been done, delegate this authority to the Attorney General.”

“It is important to understand,” Gorelick continued, “that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

In connection with the tension between FISA and presidential power, Judge Mukasey has filed still another post-hearing letter, responding to questions from Judiciary Committee Chairman Patrick Leahy. The submission thoroughly and ably assesses the applicable law — in which the only significant development since Gorelick’s testimony is the FISA Court of Review’s reaffirmation of presidential authority. Mukasey concludes that presidents maintain their Article II powers despite FISA. Still, he qualifies that the president does not stand above the law — in this case, the Constitution’s Fourth Amendment, which requires all searches to be reasonable.

For today’s leading Democrats, this position is somehow a call for “unchecked Executive power.” In years when the leading Democrat happens to occupy the Oval Office, though, it is what is known as the position of the Democratic party.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.