Shepard Smith Condemns Torture

Just fascinating. Sometimes Shepard Smith just surprises me.

And this:

On Prosecuting Bush’s Team of Torture Lawyers

From the New York Times Editorial page:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

Few, except the Obama administration itself, would quibble with what the New York Times is advocating. An official investigation followed by prosecution of those who authorized the use of torture should take place. But the question is when and by whom.

After all, President Obama has an ambitious wish list of legislative priorities inspired by the weight of several crises competing for his attention. That means that pursuing a high profile and public investigation into the abuses of person would almost certainly create a Congressional atmosphere so partisan that it would jeopardize his chances of passing a climate change bill, a health care reform bill, overhauling education No Child Left Behind, immigration reform, in addition to dealing with a likely Supreme Court vacancy even as he and his team struggle to nurse an ailing economy.

Of course, this does not preclude Congress itself from conducting its own low profile investigation while encouraging more open source reporting on the matter. Nor does it prevent certain state bar associations from disbarring the very lawyers who used legal fictions to circumvent the law.

In other words, Obama could allow others to make the case for him based on the record provided thus far over the course during the next few years. Over time pressure by certain Bush officials will mount and cause some of them to flip either because of the level of scrutiny involved, their pariah status within their respective fields, or maybe their conscience will eat at them.

That way provided there’s sufficient pressure from Congress and if the public develops an appetite for prosecuting senior Bush officials, which does not quite exist yet, the Obama administration could go in for the easy kill by appointing an independent prosecutor.

At minimum, it could set the stage for the creation of a Commission of Inquiry, as proposed by Chariman of the Senate Judicary Patrick Leahy. Certain individuals intimately involved in the torture regime could cooperate with the commission’s inquiry in exchange for some immunity.

Perhaps it would not satisfy many human rights advocates who want everyone responsible prosecuted now, but it would afford us an opportunity to learn from our mistakes.

Kenn Starr Backs Harold Koh For State Gig

That makes two. Ken Starr and Ted Olson, former Solicitor General under Bush the younger, have both endorsed President Obama’s nominee for State Department Legal Advisor Harold Koh. As some of you may know, Koh has come under attack from the likes of Glenn Beck and Jay Sekulow and their foot soldiers on the far right who have tried to portray Obama’s nominee as a nutty liberal looking to supplant American law with Sharia law and a threat to the “fundamental American principles of representative government.”

The baseless accusations have already been debunked by Dahilia Lithwick and others but now right wingers will now have to shout down their own. In a letter dated yesterday, Dean of Pepperdine Law School Ken Star said, “I am firmly convinced that Harold is extraordinarily well qualified to serve with great distinction in the post of Legal Advisor,” and Ted Olson who said he had “ the greatest respect for Harold Koh,” and added, “He’s a brilliant scholar and a man of great integrity.”

Part of the reason that conservatives have gone after Harold Koh, Dawn Johnsen, and other executive nominees is to set the stage for the larger battle over a Supreme Court nominee which may come as soon as this summer. Conservatives hope to target and tarnish as many people with SCOTUS nom resumes, like Koh, in an effort to eliminate them from contention but also to keep throwing red meat to their base to keep them engaged on issues that even vaguely have culture warrior significance.

Justice Ginsberg on Foreign Law

From Jefferey Toobin at the New Yorker:

It looks like Harold Koh, President Obama’s nominee for legal adviser at the State Department, may turn out to be the first real confirmation fight in the new Administration. The controversy has been mentioned in a handful of newspapers, but there’s plenty of Internet fire on the anti-Koh, and pro-Koh, side.

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts.

I wonder if the so-called controversy over Koh’s transnationalism can be explained away by simply saying that if citing international law is good enough for the Justices on the U.S. Supreme Court, then it should be good enough for a legal adviser to the U.S. State Department. The Court has cited international law, which is not the same as being bound by it, in cases involving gay rights and the death penalty and the sky did not fall, though it did anger the right.

Adam Liptak reported in the NYT on Saturday that Justice Ruth Ginsberg thinks the debate concerning international is sorta ridiculous.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

My sentiments exactly.

Side note: Toobin, apparently has not been following the battles over President Obama’s other executive nominees fight that closely, since he seems to think that Koh would be the first real confirmation fight.
Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel in the Justice Department, has come under attack from the far right for being a lawyer for NARAL at one point and her unsparing criticism of Bush’s warrantless wiretapping program and use of torture to extract intelligence information from detainees. Republicans are threatening to filibuster her nomination.

Another nominee, Thomas Saenz, was in the pipeline, though never formally announced, to be Obama’s top civil rights enforcer at the Justice Department until the anti-immigrant right sunk his nomination for his work on successfully challenging local ordinances banning day laborers from city streets and of California’s Proposition 187, a 1994 ballot measure that prevented undocumented immigrants from taking advantage of certain social services.

Misreading the Bush Doctrine in the WaPo

On Sunday, the Washington Post published a story with the following headline: “Bush Doctrine Stalls Holder Confirmation.” Now I understand that headline writers have quite a bit of leeway in deciding what they title certain articles, but there’s a difference between being creative and misrepresenting the main idea of a story.

The lead in the article says, “Even as Senate Republicans seek assurances that new leaders at the Justice Department will not prosecute former government officials over national security abuses, one of the highest-profile investigations of the Bush era is grinding to a close.” The rest of the article describes how Senate Republicans want to assurances from Eric Holder that he will not seek to investigate and prosecute those who may have tortured or otherwise abused detainees under interrogation and the destruction of tapes recording those sessions. That has nothing to do with the Bush Doctrine.

Simply stated, the Bush doctrine holds that the U.S. has a right to extinguish national security threats with the use of military force against a country or nonstate actor as preventive measure. That is to say, we may wage preventive war to anticipate threats before they blossom into full blown eminent threats. This is a radical idea because international law calls for threats to at least be eminent before claiming to wage an attack in self defense against an enemy. Otherwise, there is no way of truly distinguishing a war of choice from a war of necessity.

By contrast, the WaPo article on Senate Republicans stalling the confirmation of Eric Holder as Attorney General has to do with pressuring him not to investigate officials interrogating war on terror suspects, not his views on what constitute the judicious use of military force. One is a question of who to prosecute and what for, whereas the other has to do when we should go to war against or at least strike an enemy.

Its hard to imagine that the folks at the WaPo thought that making these kind of distinctions do not matter.

Myth of Eric Holder as Flaming Liberal

The National Review editors on the Holder nomination:

He is convinced justice in America needs to be “established” rather than enforced; he’s excited about hate crimes and enthusiastic about the constitutionally dubious Violence Against Women Act; he’s a supporter of affirmative action and a practitioner of the statistical voodoo that makes it possible to burden police departments with accusations of racial profiling and the states with charges of racially skewed death-penalty enforcement; he’s more likely to be animated by a touchy-feely Reno-esque agenda than traditional enforcement against crimes; he’s in favor of ending the detentions of enemy combatants at Guantanamo Bay and favors income redistribution to address the supposed root causes of crime.

I find this whole portrayal of Eric Holder simply laughable, especially since Obama’s nominee position on certain issues defies liberal orthodoxy. Holder advocated for stiff penalties for marijuana users, supported mandatory minimums, provided legal advice for Chiquita Brands International Inc., and while serving as U.S. Attorney for the District of Columbia acquired a reputation as very pro-police even at a time when use of force by cops were at historic highs.

In sum, Holder was a prosecutor who shared a lot, though not all, of the conservative views that many other prosecutors have. So, to suggest that he’s some flaming liberal is completely off base.

On the Anti-Eric Holder Movement

By nominating Eric Holder (see picture) to become the nation’s next attorney general, President-elect Barack Obama intended to signify the end of Bush era cronyism, incompetence, politicization, and use of enhanced torture techniques at the Department of Justice.

At the press conference where the President-elect unveiled his national security team, Obama said, “Let me be clear. The attorney general serves the American people. And I have every expectation that Eric will protect our people, uphold the public trust, and adhere to our Constitution.”

He also praised Holder’s independence and spoke of the native New Yorker’s deep familiarity “with the law enforcement challenges we face from terrorism to counterintelligence, from white-collar crime to public corruption.”

But there seems to be a movement afoot in among conservatives to portray Holder as a figure that lacks the integrity and the independence necessary to become the nation’s top law enforcement officer. In referring to the Marck Rich affair, the National Review tell us that Obama  nominated an “AG nominee who promoted a corrupt pardon process that sprung mass-murderers from prison.”

The Wall Street Journal editorial board would have their readers believe that Holder is a terrorist sympathizer because President Clinton pardoned 16 members of a rebel and domestic terrorist group seeking state sovereignty for Puerto Rico called the Fuerzas Armadas de Liberación Nacional. Other critics of the Holder nomination are even dredging up the whole Elian Gonzales affair as another instance that implicated him in another low point for the Clinton administration.

One has to wonder why the Holder opposition people were not as critical of the Alberto Gonzales nomination, considering he would be going from White House Counsel to running the Department of Justice. As many people pointed out at the time the appointment was fraught with conflicts of interest problems. At least Holder did not come from an Obama White House position to become the nation’s top lawyer.

At any rate, for his part, Holder has already admitted that the Marc Rich incident was a mistake. This is not to say that it does not merit scrutiny. But it does suggest, however, that it should not overshadow a long record of distinction in public service.

Here is a man who served as a federal prosecutor within the Justice Department’s Office of Public Integrity  going after everyone from influence peddlers in and out of government and organized crime figures. As Deputy Attorney General in the Clinton administration, Holder also “issued guidelines on the use of the False Claims Act in civil health care matters,” according to his biography on the Covington & Burling website.

After serving as a judge for some time, Holder also set up a Children Exposed to Violence Initiative within the Justice Department. In sum, Holder has the experience, the record, and the know how to run the Justice Department – all of which is a must for the next AG nominee considering its the Department’s current state. But of course, the real goal here is not to shoot he kill on this nomination in my opinion, the real goal here by conservatives is not to kill the Holder nomination, but to generate enough of a cloud of suspicion and simply to knock Obama down  a notch.

Just as the guilt by association card has been used to implicate Obama in the  Gov. Blagojevich pay to play scandal right wingers are trying to use Holder’s involvement in President Clinton’s controversial pardons to tar Holder and Obama with the same brush of perceived corruption.

And now the anti-Holder opposition has resorted to pressuring Senate Judiciary Chairman Pat Leahy to delay the start of the confirmation hearings. Sam Stein of the Huffington Post is reporting that Republican Senators Jon Kyl and Tom Coburn have signaled that if they are not given more time to “consider” Holder’s record, they will hold up his confirmation, i.e., filibuster the nomination. If Senator Leahy were to grant to such a request, that would only penalize Obama for having picked his nominee so early, which gave the Senate at least 39 days to review Holder’s record. And as Leahy himself noted in a letter to Senator Arlen Specter on the same subject:

Other Attorney General nominations, which you and I have considered together, include that of your fellow Pennsylvanian, Dick Thornburgh, whose hearing was held 24 days after he was announced. He remained in office when Vice President George H.W. Bush was elected President. When he left the post toward the end of that administration, we proceeded with Bill Barr, whose hearing was held 25 days after he was announced. The beginning of President Clinton’s administration was unusual, but when he settled on Janet Reno, her hearing was held 26 days after she was announced.

News reports feel say the Obama team feels fairly confident that they have they votes, but they may be concerned that if the Republicans can make the vote on the nomination partisian then they could force the President-elect to expend the kind of political capital the won his centrist transition team a 79 percent approval rating.

The Holder nomination serve as an early test of whether or not team Obama can handle Republican opposition in Senate as much as it will serve as an early indication of how united the GOP’s caucus is in the that chamber.

John Edwards for Attorney General?

Perhaps I am alone in thinking this, but I am not eager to see an Obama-Edwards ticket. On the paper its looks good. John Edwards speaks with the rhetoric of grand populism which may help Obama with white working class voters, he is from North Carolina, a state that may be in play this election season, and he is a white dude from the South.

But as the NY Times reported some time ago, Edwards was always uneasy taking the number two spot on the Kerry campaign in 04 and seemed unwilling to stay on message. Some of Edwards staffers reportedly wore ““Edwards for President” pins at a fund-raiser long after they were working for the Kerry-Edwards ticket.”

(I have to admit thats kinda funny, though it must have infuriated Kerry supporters, and understandably so.)

Plus, I happen to think it would be smarter to pick a governor from a state he might have trouble with, like Ted Strickland of Ohio, or a white guy from the South who can help conceal a perceived weakness like former U.S. Senator Sam Nunn from Georgia, a real wonk on nuclear non-proliferation issues.

To be sure, Edwards probably was right about a lot of his own criticisms of the Kerry campaign since it was oftentimes disorganized. According to the Edwards folks, they were frustrated with Kerry’s meager response to the Swift boat ads and lack of a clear stance on the Iraq war.

Two crucial areas that proved decisive in the end.

Those issues not withstanding, one could see that the former North Carolina Senator simply wanted to be his own man. He is after all very much a serial campaigner.

That’s why I’d rather Edwards as a surrogate who, if he campaigns hard enough, then you could reward him with an attorney general appointment where he can be something akin to Elliot Spitzer before hookergate, when he was AG for New York State.

I could see the Tar Heel Senator convicting execs for committing white collar crimes or suing after certain health care companies for misrepresenting their policies and gouging their customer base.

Ditto for certain energy, telecom, and mortgage services companies.

Perhaps, it was as condition of his endorsement. During a recent trip to New York to pick up a reward from a liberal think tank, NYT asked John Edwards about his interest in the vice presidency or an attorney general slot and I thought his response was quite telling.

Mr. Edwards, the one-time contender for the 2008 Democratic nomination and Senator John Kerry’s running mate in 2004, responded to speculation about a potential role in an Obama administration, saying, “I have no interest in running as vice president.” But asked about serving as attorney general, he responded: “Oh, I don’t have any thoughts about any of that.”

“I don’t have any thought about any of that” sounds a bit like damn that would be a sweet gig, but I can’t act like I am all that interested in it ’cause I am still politicking for it.

Oh wait maybe that was just my interpretation.

Race to Incarcerate

A new report by the Pew Center on the States on the nation’s prison population has found 1 percent of all adults in the United States is behind bars. And that’s not all. According to Pew the national prison population tripled during the last two decades. Expenditures on correctional facilities went up up from $19.38 billion to $44.06 billion in inflation adjusted dollars.

See graphs below.

Download the report here.

Thousands Protest DOJ Sluggish Response to Hate Crimes and Police Misconduct

Yesterday thousands marched from Freedom Plaza to the Justice Department in Washington DC to protest the limp response prosecuting hate crimes and police misconduct. Activists have pointed to the disparity in treatment of Jena Six teens, the noose found from college campuses to the cost guard academy, the rape and torture of Megan Williams, the deadly shooting of Sean Bell in Queens, New York and Khiel Coppin in Brooklyn has served as the impetus for more than 20,000 people to agitate federal authorities to vigorously enforce civil rights laws.

Though much of the media attention and ire has focused on Rev. Al Sharpton and Martin Luther King Jr. III, the Hip Hop Caucus has been the main organizing force behind the march, which has been promoted by black radio personalities such as Tom Joyner and Steve Harvey have promoted it.

Newly sworn in Attorney General Michael Mukasey has released a statement in reaction to march implying that the energies of the march has been misplaced. “We hope that all can agree that it is the criminals who commit violent acts of hate who deserve the loudest protest.” He also suggested that much of work on hate crime case has to be done secret, “In order to be most effective, these investigations do not occur in the public eye.” Such a statement should strike most people as a dodge considering that it is the lack of enforcement of federal laws that people were protesting against.

More importantly the numbers tell the story. According to an ABC News article,

In 1997, there were 799 investigations of racially motivated crimes and incidents against houses of worship reported to the division’s Criminal Section. In 2007, that number was 256 — a decrease of 68 percent for the decade.

As for criminal cases, the Justice Department charged 76 individuals in 1997, and the number has declined in the decade since. Charges have been filed in only 15 cases so far this year.

There must be a lot of secret investigations to make up for this such as huge drop off.

Check out Thursday’s CNN news clip on the march.

Here is Micheal Mukasey’s statement on the march.

Statement of Attorney General Michael B. Mukasey Regarding Thursday’s Civil Rights March

In recent months, there have been reports of nooses and other symbols of racial and religious hate appearing in schools, work places, and neighborhoods across the country. These symbols of hate have no place in our great country. As part of the Justice Department’s racial threats initiative, the Department – including the Civil Rights Division, the U.S. Attorneys’ Offices and the Federal Bureau of Investigation – is working in partnership with state and local law enforcement and civil rights organizations to investigate aggressively dozens of noose-hangings and other recent racially and religiously motivated threats around the country. In order to be most effective, these investigations do not occur in the public eye.

The Justice Department shares with those who demonstrate today their objective of bringing to justice those who commit criminal acts of hate; it shares their vision of eradicating hate in our society. At the same time, the Department must follow the law and the principles of federal prosecution in every case it investigates and prosecutes. Although there are limitations and challenges in bringing successful hate crimes prosecutions, the Department takes each case seriously, and is prepared to vindicate the rights of the victims when prosecution is warranted by the facts and by federal law.

The mission of the Justice Department’s Civil Rights Division is as vital today as when it was created 50 years ago. Those who march today should be commended for highlighting the issues of tolerance and civil liberties. We hope that all can agree that it is the criminals who commit violent acts of hate who deserve the loudest protest. And as long as hatred and racism exist, the Justice Department will continue its hard and effective work on behalf of all victims of hate crimes.

###

Check out Rosa Clemente, the Executive Director of the Hip Hop Caucus, explain the aims of the march on Democracy NOW! from the activist perspective.

Mukasey Takes Us Back To Square One

Alberto Gonzales’ greatest flaw as attorney general was his inability to draw a clear line between being the President’s lawyer’s and the people’s lawyer. When Bush and his team of operatives wanted to fire U.S. Attorneys for not prosecuting enough voter fraud cases, Gonzales did it. When Bush wanted to politicize the civil rights division at the Justice Department, Gonzales did it. When Bush wanted the Justice Department to give its blessing to other agencies in ignoring international and domestic law, Gonzales did it.

So when Mukasey was nominated to replace Gonzales as the nation’s top law enforcement officer, we were supposed to be reassured by the appointment because he was not Gonzales, he was not Ted Olson. Mukasey was touted as an  independent-minded nominee who would stand up to the Bush administration when warranted  You know umm….like a real Attorney General should.

Of course, that consesus is now challenged given Mukasey’s refusal to call waterboarding torture.  At the hearing, Mukasey now famously said ”if it amounts to torture it is not Constitutional.” That of course, is far from an unequivocal denoucement of the practice. He could have redeemed himself in his responses to follow up questions, but instead resorted to the same legalistic dodge he propagated before the Senate Judiciary Committee in saying the technique

seem over the line or, on a personal basis, repugnant to me and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.

But just repugnant, not illegal.

News reports are circulating about how Mukasey and the rest of the administration is worried that if the nominee says if waterboarding is torture all sorts of people from the lowly interrogators to the President himself could be held liable for encourgaging and administering torture.

This seems to take us back to square one, where the next Attorney General is reluctant to hold the President and others accountable for unlawful acts, and probably defend them. Perhaps, Mukasey was never apart of George W. Bush’s inner circle of loyalists, but Muskasey’s views on executive power alone does not necessarily mean he is a real improvement from Gonzales.

When asked about the the Bush administration legal basis for its illegal wiretapping program Mukasey provided another legal dodge.

I have no reason to believe that the state secrets privilege has been asserted in bad faith. If confrimed I would ensure that any assertion of the state secrets privilege was based on national security considerations.

When asked about his view of the material witness statue particularly his interpretation of it after 9/11, where Mukasey approved the indefinite detention of numerous Arab and Muslim men, Muskasey said:

To my knowledge, the criteria of the material witness stature were met in each of the cases.

And on virtually every civil rights issue from voting to housing discrimination to the civil rights division itself, Mukasey’s automated response was he either was not familiar with the issues or did not have sufficent information about this or that case or policy.  That’s reassuring.

If Mukasey is not really going to stand up to the administration on abuses of executive power and remains uninformed or indifferent regarding civil rights issues, how is he better than the potted plant that just got uprooted two months ago?

John Tanner Gets the Grilling of His Life

John Tanner got the grilling of his life by a House Judiciary Subcommittee yesterday on his record as chief of the voting rights section at the Justice Department and his remarks about minority elderly voters.

Under Tanner’s leadership the Justice Department has approved the most stringent voter ID laws in places such as Arizona, Georgia, and Indiana that make it harder not easier for the poor, people of color, and the elderly to vote. Many civil rights advocates consider current voter ID laws a tool of voter suppression because of their onerous provisions.

As Bradblog reported weeks ago, Tanner stated his rationale for not believing elderly voters of color are discriminated against in the implementation of these laws because “they die first.”

Since then, Tanner offered a meager apology that sounded more like as if he regretted how others misinterpreted his statement than an attempt to be genuinely contrite.

I want to apologize for the comments I made at the recent meeting of the National Latino Congreso about the impact of voter identification laws on elderly and minority voters. I understand that my explanation of the data came across in a hurtful way which I deeply regret.

Alabaman Congressman Artur Davis, however, wasn’t buying it. He began his questioning by leaning into Tanner regarding his rationale for his offensive remarks. Tanner began to explain away his statements by referring to certain inequities in the healthcare system and other “sad facts.” But curiously cited very few facts and statistics to support his views.

As he probed John Tanner reasoning, Congressman Davis asked him the most salient question all morning: Was Tanner familiar with the numbers regarding voter turnout among minority voters in Georgia? After a few failed attempts at dodging the question, John Tanner, chief of the DOJ voting section, said no.

Mr. Davis did not stop until he hammered this critical point home.

You’re a policy maker, sir. You’re in charge of enforcing the voting rights laws in this country and if you are not fully informed about you are talking about and pontificating about…. If you are basing your conclusions on stereotypes rather than facts, then it suggests to some of us that someone else can do this job better than you can.

Watch it.

Pressure Mounts on Mukasey to Denouce Torture

A growing number of Senators are starting to mount pressure on attorney general nominee Michael Mukasey to denounce water boarding as a form of torture.  Sen. Carl Levin (D-MI) told Face the Nation yesterday that Mukasey “should not be confirmed unless he is very, very clear about these aggressive techniques, which violate our laws and violate (the international) Geneva (convention on treatment of prisoners of war), as being totally unacceptable.”

And even Republican conservatives such as South Carolina Senator Lindsey Graham voiced concerns about Mukasey’s legalistic and dispiriting response stance on waterboarding. “I am urging him that he needs to come forward. If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don’t think you have to have a lot of knowledge about the law to understand this technique violates” international and domestic laws.

Democratic Presidential hopeful Senator Chris Dodd of Conneticut also announced his opposition to Mukasey recently in this statement:

Mr. Mukasey’s position that the President does not have to heed the law disqualifies him from being the chief attorney for the United States. We have seen for too long, and at great expense to our national security, an Administration that has systematically attacked the rule of law and turned our Justice Department into a political wing of the White House. I’m afraid that Mr. Mukasey as Attorney General would be more of the same.

Not only does statements like these makes you doubt if Mukasey has the votes to get confirmed right now, but, more importantly, whether or not the Bush administration will take a nominee who has gone on record denouncing torture, if Mukasey reverses himself. 

Seeing mere skeptics and lukewarm supporters of  Mukasey’s nomination turn into outright opposers also makes you wonder if the administration is going to allow this nominee sink, and start over with say a Ted Olson, or if it just inept at tackling this meltdown.

McCain Hedging on Waterboarding

Presidential hopeful Senator John McCain (R-AZ), has championed anti-torture legislation and has remained a steadfast critic of the Bush Administration’s torture policies. In 2005, he took on the White House in battling for the passage of a “law banning cruel, inhumane and degrading treatment of foreign suspects in the war on terror,” which, among many other torture techniques, outlaws waterboarding.

And as recently as this past summer at a GOP Presidential Debate in New Hampshire, he castigated his fellow Republicans for implying that pro-torture policies helped U.S. in its so-called “war on terror.” At that forum he said, “And it was interesting, during the debate on torture, the retired military, from Colin Powell on down and others, sided with me. Those who had no military experience took the other side.” As it is often noted, Sen. McCain’s position on the issue is rooted in his experience of being tortured while held captive by the Vietnamese after his plane was shot down 40 years ago this week.

So given McCain’s history of being a fierce anti-torture advocate, one would think he would be much more forceful in his criticism of Attorney General nominee Michael Muskasey’s refusal to call waterboarding torture. During his confirmation hearings, Mukasey said if waterboarding was unconstitutional it was indeed torture, a statement that completely ignoring the passage of the Detainee Treatment Act of 2005, or at best suggesting the law itself was inconsistent with the U.S. Constitution. Either way Mukasey’s response implied he might at worst permit, if not encourage, certain techniques already banned by Congress to continue.

But Mr. Straight Talk Express actually did nothing of the sort while on ABC’s This Week with George Stephanopoulos earlier today. In fact, when asked point blank “Will Mr. Mukasey have to say clearly that waterboarding is torture to get your vote for attorney general?” McCain sounded coy and cautious. He simply retorted:

I can’t be that absolute. But I want to know his answer. I want to know his answer. Obviously, you judge a candidate for office or nominee for office on the entire record. But this is a very important issue to me.

Watch it!

In recent days, a number of other Senators have voiced their criticism of Mukasey’s refusal to unambiguously condemn the use of torture, including Sens. Arlen Specter (R-PA), Majority Leader Harry Reid, Sheldon Whitehouse (D-RI) and Patrick Leahy (D-VT). Senator Bernie Sanders (I-VT) has already stated he will vote against Muskasey’s confirmation.

In the coming days, we will see if Mukasey credibly repositions himself on the torture issue to merit Senate support. If Muskasey wins Senate approval despite an unequivocal rebuke of all torture methods, the rest of the Senate will be using the same double-talk play book the administration has been using on the American public since the Abu Garaib.

(H/T: Think Progress)

School to Prison Pipeline

In its preliminary shadow report of the United States compliance with an international treaty on ending racial discrimination, the American Civil Liberties Union summarized the “school to prison pipeline” in very succinct and sobering terms.

The “school to prison pipeline,” a disturbing national trend, refers to the increasingly widespread practice of funneling primarily children of color out of public schools and into the juvenile and criminal justice systems. These are often children with learning disabilities or histories of poverty, abuse or neglect. Rather than addressing their needs through additional educational services, they are isolated and punished.

Policy trends responsible for this problem include “zero-tolerance” policies criminalizing minor instances of school misconduct; schools increasingly ignoring due process protections for these children, expelling them from public schools and placing them in alternative schools and detention facilities; and policy initiatives including the federal No Child Left Behind Act that place an undue emphasis on ‘high stakes testing,’ providing schools the incentive to push out low performing students.

For example, in the Winner school district in South Dakota, middle and high schools disproportionately punish Native American students for alleged misconduct. Native American students, many with learning disabilities, are 3 times more likely than Caucasian students to be suspended and more than 10 times more likely to be arrested for school misconduct.

Over one-third of the Native American students will be suspended, and roughly 1 in every 7 Native children will be arrested for violating a school disciplinary rule, in any year. Native children who defend themselves against racial harassment by Caucasian children are routinely arrested.

The U.S. report, by contrast, barely mentioned the school to prison phenomenon.

To read the U.S. report on its compliance with the CERD click here.

To read the Convention on the Elimination of All Forms of Racial Discrimination (CERD) click here.

Click here to read the rest of the ACLU report.

Update: Learn more about the school to prison pipeline Legal Defense Fund’s site by clicking here. Learn about the ACLU’s campaign against the school to prison pipeline by clicking here.