To Senators Dianne Feinstein and Charles Schumer;
When, in the future, you retire from the Senate and sit down to write your memoirs, I predict that this week's vote in the Senate Judiciary Committee in favor of Attorney General nominee Michael Mukasey will not rank as one of "the votes I'm proudest of in the Senate" for either of you.
You both knew that voting for Mukasey was the wrong thing to do, and yet you did it anyway for reasons that can only be described as "political expediency." Not exactly a profile in courage for either one of you.
And yet, even now, there is one chance which remains for you both to redeem yourselves. The gauntlet has been thrown at your feet, and you need to boldly take up the challenge. At first it was just your own political cover (or spin) in getting Mukasey to agree that if Congress explicitly passed a law forbidding waterboarding that he would have no choice to uphold this law -- or resign, if told not to by the White House.
Senator Kennedy rightly derided this justification of your vote to confirm Mukasey as lowering the bar of acceptance for the highest law enforcement officer in the land to merely agreeing to follow the law -- which should be a prerequisite for the job. He's right.
So now you must do the only thing left to restore any shred of moral authority to the Judiciary Committee and to yourselves. You must immediately vote on Senator Kennedy's bill (S.1943) to, once and for all, define in crystal-clear terms the fact that waterboarding is torture and is illegal.
As recent as a decade ago, it would simply have been inconceivable that we were even discussing (let alone debating the merits of) whether the United States of America should torture people. Sadly, we are where we are now. We are not only discussing whether torture should be used in our name, it is actually a contentious issue.
This means you need to force every Senator and every Representative in the U.S. Congress to go on record voting whether we should allow the CIA to torture people. And this needs to happen before the Senate votes to confirm Mukasey as Attorney General.
From the text of S.1943:
(a) In General -- No individual in the custody or under the effective control of the United States Government or any agency or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by sections 5-50 through 5-99 of the United States Army Field Manual on Human Intelligence Collector Operations.
(b) Prohibited Actions -- The treatment or techniques of interrogation prohibited under subsection (a) include, but are not limited to, the following:
(1) Forcing an individual to be naked, perform sexual acts, or pose in a sexual manner.
(2) Placing a hood or sack over the head of an individual, or using or placing duct tape over the eyes of an individual.
(3) Applying a beating, electric shock, burns, or other forms of physical pain to an individual.
(4) Subjecting an individual to the procedure known as 'waterboarding'.
(5) Subjecting an individual to threats or attack from a military working dog.
(6) Inducing hypothermia or heat injury in an individual.
(7) Conducting a mock execution of an individual.
(8) Depriving an individual of necessary food, water, or medical care.
Some will call this law unnecessary. Some will call it a wasted effort, since President Bush can veto it or attach a signing statement to it. Some will argue that passing such a law will justify previous illegal torture performed by United States government personnel. And some (led by the White House) will fear-monger to anyone who will listen that "this will tie our hands in the war on terror."
None of these objections should be heeded. Because for every rationalization for not passing such a law, there is an overwhelming answer for why you need to pass such a law: because it is the only way to force this administration not to torture people. And America should never condone torture. Ever.
President Bush has proven time and time again that he will do exactly as he pleases unless Congress specifically prohibits him from doing so. Mukasey is now on record that if you pass such a law, he will enforce it. So there is just no excuse left for not doing so.
What's more, I know that both of you agree with me. How do I know this? Because both of you were among the first Senators to sign on to Kennedy's bill as co-sponsors Was this more political expediency, or do you truly believe in this bill? If you do believe in it, then it offers the two of you an avenue of redemption for the shame of approving Mukasey in committee. But the only way you will be able to redeem yourselves in the eyes of the public is to not just support this bill but actively champion it, every chance you get. You need to publicly come out for holding up Mukasey's confirmation on the floor of the Senate until this bill is on President Bush's desk.
Anything short of playing hardball on this issue will mean that you signed on to Kennedy's bill as political cover for your embarrassing votes in committee. You have this one chance left to convince the American public that confirming Mukasey is not the same as accepting torture. Confirm him only after you have explicitly defined "torture" for the President of the United States -- since he seems to have such a problem with publicly defining the word.
Senators, the country is waiting for your leadership on S.1943. Don't let us down. Because it's the only way you'll ever remember this time fondly when you sit down to write those memoirs. It's the only way you'll ever be able to tell yourself: "I did the right thing."
[If for some reason the links don't work, go to thomas.loc.gov and search for bill number S.1943 to see Kennedy's bill.]
Chris Weigant blogs at: ChrisWeigant.com