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Mukasey Questioned on Torture, Clinton Attacked by Opposition

November 2, 2007 at 6:40 PM EDT
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RAY SUAREZ: And to the analysis of Shields and Lowry, syndicated columnist Mark Shields and National Review editor Rich Lowry. David Brooks is off this evening.

And in just the last few hours, Mark, three notable names stepping forward on the Mukasey nomination, Chairman Patrick Leahy of Vermont, a “no,” Senator Dianne Feinstein of California and Chuck Schumer of New York, a “yes.” Does he get to 10 and get out of committee?

MARK SHIELDS, Syndicated Columnist: I think he does. I think that the Feinstein and Schumer support are key to it, Ray. What’s fascinating is I think there was a calculation made.

Obviously, Chuck Schumer of New York is Mukasey’s original sponsor, so he was in somewhat of an awkward position, but because of the brouhaha, the unresolved answers on waterboarding, waterboarding sort of became — and I hate the term waterboarding, because it sounds like surfboarding or skiing or something, and it’s forced simulated drowning, where the prisoner experiences the same sensation of drowning. That became central to the debate.

I think the calculation was that Mukasey was the best they were going to get, that the Justice Department is just in deplorable shape, that the morale is very low, and that President Bush, if denied Mukasey, would come up with somebody, quite frankly, who would be acting attorney general and far less acceptable to the majority of the Senate.

RAY SUAREZ: First off, Rich, you agree generally that he’s going to get out of committee?

RICH LOWRY, Editor, National Review: Yes, he’ll definitely get out of committee. And the rumor was all week that Schumer was going to support him, but didn’t want to be the only Democrat on that committee to support him, wanted someone to hold his hand for the vote, and he got Dianne Feinstein apparently to do that.

Use of waterboarding

Rich Lowry
National Review
Waterboarding is an extremely complex issue, and it would have been irresponsible of Mukasey to pronounce on it before he has fully read into the program and know what it entails.

RAY SUAREZ: Now, was this an important enough issue, even if it only ends up having cast the nomination into doubt, was it an important enough issue for everybody to pause and have a scuffle over this?

RICH LOWRY: I don't think so. I don't think on the merits, but symbolically it became kind of a referendum on the Bush administration's war on terror, which the Democrats obviously are not fond of.

I think waterboarding is an extremely complex issue, and it would have been irresponsible of Mukasey to pronounce on it before he has fully read into the program and know what it entails.

RAY SUAREZ: And, of course, if he had read into the program, he wouldn't have been allowed to talk about it.

RICH LOWRY: Well, yes, that's part of the paradox here. But, basically, if Mukasey wasn't qualified and Democrats weren't going to confirm him, there would be no attorney general Bush could have, because the Bush administration, CIA officials have conducted waterboarding.

And if you have an AG going in saying, "This is illegal, this is torture," you're going to expose those people potentially to war crime prosecutions, in theory. And just no Bush attorney general nominee is going to do that. So it was either Mukasey or no one, basically. And in that choice, Mukasey wins.

RAY SUAREZ: Now, if it gets out of committee and goes to the whole floor, where presumably he has more support and a better sail ahead, is this over, the fight over waterboarding and, more broadly, over use of interrogation techniques?

MARK SHIELDS: I don't think it is. I'd probably bet in favor of his confirmation right now, Ray, but, I mean, John McCain, Republican candidate for president from Arizona, said waterboarding is not a complicated procedure. It is torture. Lindsey Graham, Republican from South Carolina, 25 years a military lawyer, says it violates the Geneva Convention.

I mean, this has been prohibited by American generals in Vietnam 40 years ago. We have tried an American soldier for it in Vietnam for waterboarding a North Vietnamese soldier, who was then dishonorably discharged and sentenced. After World War II, we tried Japanese officers who had used waterboarding against Americans and sentenced them to 15 years of hard labor.

It goes all the way back to the Spanish-American War. There's nothing new about this other than the fact that, for the first time, something that's prohibited explicitly by the United States Army Field Manual, and no military personnel is allowed under any circumstances to use it, it has been brought back by Dick Cheney and George Bush to say it's a no-brainer, said the vice president. Of course you can do this, you can dunk people in water.

Condemning waterboarding

Mark Shields
Syndicated columnist
By quoting the United States Counterinsurgency Manual, it says, "Those who lose moral legitimacy lose the war." And we lose moral legitimacy, according to the manual, when we use torture.

RAY SUAREZ: Now, it's interesting, Rich, because there's been a lot of back-and-forth over whether this should be explicitly condemned or not. And a lot of people said, "No, no, you've got to leave it on the table, because people who are picked up as terror suspects by the United States shouldn't have some expectation of what's going to happen to them and what's not going to happen to them."

In response to that, one retired military man said, "Well, now it's going to happen to Americans who are ever picked up on the battlefield, because there will be a reasonable expectation on behalf of the enemy that it's happening to their men."

RICH LOWRY: Well, it's just an unfortunate fact the way the world is. Our guys are tortured, you know, pretty routinely by the kind of -- whether it's the North Koreans, the North Vietnamese, or whether it's al-Qaida. So banning waterboarding, unfortunately, I don't think is really going to afford our guys much protection when they're caught by those sort of regimes or those sort of terrorists.

I think waterboarding -- look, reasonable people can conclude it's torture, but I sort of apply a commonsense standard here. Journalists are volunteering to be waterboarded to see what it's like. You would not do that with any infamous, obvious torture techniques. Journalists wouldn't volunteer, "Please, pull out my fingernail. I'm really curious how that feels."

And they're only volunteering because it's two minutes of panic. It's a horrifying procedure, but then you walk away. And we use it in our own training for the Army and the Navy, the training of survival and resistance. If it's torture, that training itself is illegal and wrong and shouldn't be happening.

So, look, obviously it's right up there, right to the line. I think it's a technique that should be used in reserve, that we should have in reserve, in extremely limited circumstances, in cases where you have very high-level al-Qaida officials who might have knowledge of ongoing plots. So you don't have time to deal with them over a period of months and you want to break them quickly, and that's exactly what happened with Khalid Sheikh Mohammed.

MARK SHIELDS: If I'm not mistaken, the Navy SEALs have abandoned it as a training procedure. But I would add this, that volunteering for a trial for two minutes is not the same thing as being a prisoner subjected in the total control of somebody who's using it. You don't know if it's going to be two minutes. You don't know if it's going to be for the rest of your life.

And by quoting the United States Counterinsurgency Manual, it says, "Those who lose moral legitimacy lose the war." And we lose moral legitimacy, according to the manual, when we use torture.

Bush's relationship with Congress

Rich Lowry
National Review
Torture is always wrong. You never should do it in these circumstances. But the closest you're going to get to a ticking time bomb-type scenario ... is when you have a high-level al-Qaida operative with knowledge of things that might be happening.

RAY SUAREZ: Rich, this week the president hinted that, if the Mukasey nomination went down, he wasn't going to nominate a successor. We would just go with an acting attorney general for the rest of the way. Also, intimations of moving more presidential priorities by executive directive rather than through legislation, does this signal a new relationship between the Bush White House and an admittedly more hostile Congress?

RICH LOWRY: Well, sure, I think it's a product of circumstances, right? You know, you're in an administration now in its waning months. And you saw the same thing with the Clinton administration. When time is beginning to run out, you turn more to executive orders.

I don't think waterboarding, just to go back to that issue, I don't think it's torture. And the thing is you've had people like Chuck Schumer on the record, in a 2004 hearing, endorsing torture in a ticking time bomb sort of scenario. Bill Clinton has endorsed torture in a ticking time bomb. So has John McCain.

And the fact is: Torture is always wrong. You never should do it in these circumstances. But the closest you're going to get to a ticking time bomb-type scenario, you know, real life isn't like the TV show "24," is when you have a high-level al-Qaida operative with knowledge of things that might be happening.

And it doesn't shock my conscience, and I don't think most people, the American public, it shocks their conscience to subject someone like KSM to two minutes of panic to get his information.

RAY SUAREZ: Khalid Sheikh Mohammed, who's -- Mark, yes, we were talking about the president and his relationship with Congress before Rich took us back to torture.

MARK SHIELDS: Yes, the president has no relationship with Congress. I mean, it's that bad. I mean, this administration -- you know, to put it in cruel shorthand, this week they came out for torture and against children's health care. That's a tough road to go into the 2008 election with for any party.

And I think that the president has given up any hopes of a positive agenda in Congress. I mean, the sense of cooperation, collegiality that was originally spoken of has obviously dissipated. I don't say all responsibility is his, but he's decided he's going to run on an agenda that's going to attack the Congress. And that's his answer to his party's plight right now.

Attacks on Hillary Clinton

Mark Shields
Syndicated columnist
I think her campaign made a serious blunder in the postmortem, Ray, and that was by somehow casting it, all the guys were piling up on Hillary, and that the boys were after the girl. And I don't think that is a successful strategy.

RAY SUAREZ: Before we go, let's take a look at the Democratic Party presidential debate this week. Hillary Clinton, the subject of a lot of politicians' answers that night, what did you make of that?

RICH LOWRY: Well, I was caught on the wrong side of the pundit wave on this, because I thought she won. I thought she had a withering assault from all sides, including the moderators, and she was persuasive for most of the evening. She was calm; she was cool; she was collected.

But she did straddle a lot. And that's been a key part of her strategy throughout this whole campaign, is to maintain her viability in the general election by not saying anything that's going to hurt her in the general election. And it served her well all year long. And now, finally, she's getting called on it, because she took it a little too far.

And the question, of course, that was the tipping point was the question about the driver's license for illegal aliens, where everyone jumped on her.

MARK SHIELDS: I thought Senator Clinton had a very good debate. I thought she was, as she has been, confident. I thought she handled the criticisms raised by the panelists, her colleagues, and the interrogators very, very well, with great equanimity. She didn't appear to be strident or defensive.

And I agree with Rich: She did stumble on that last one, appearing to try to have an answer both ways. And that became sort of the narrative, the post-debate narrative. It's become the narrative of the non-Clinton people, both in and out of the Democratic Party.

I think her campaign made a serious blunder in the postmortem, Ray, and that was by somehow casting it, all the guys were piling up on Hillary, and that the boys were after the girl. And I don't think that is a successful strategy.

Americans don't want a victim as president; they want someone who's strong and decisive. She has been that up until now. You can't play the gender card more than once in an election. If I were she, I would have saved it until November or October of 2008, if she's the nominee.

RAY SUAREZ: Well, that is a theme I can guarantee that we are going to get back to before this thing is over. Good to see you both.

RICH LOWRY: Thanks, Ray.

MARK SHIELDS: Thanks.