This will be a short but incredibly important diary (or at least statement).
People, as dismaying, disgusting, and unbelievable as it is that the senate actually confirmed Mukasey as AG without a single Republican standing up against torture and not a single Dem producing so much as a peep to stop or delay the confirmation, it does get worse. Please follow me below the fold for why...
Yes, the Democrats could have derailed this nomination without much problem, especially with a 53-40 vote tally (with ALL the presidential contenders notably absent), it is now important that we do everything possible to prevent the Democrats from making this even worse than it already is.
The Democrats will make this much, much worse if they pass any laws banning waterboarding or torture. Schumer and Feinstein expressly made the statement that they decided to back Mukasey after he expressed to them privately that if they pass a law expressly banning waterboarding, that the President would have no authority to violate that ban. That is a poison pill! If the senate now passes a law banning waterboarding, then first, it implies that it wasn't illegal before passage of the law (thus Bush, Cheney, Rumsfeld, various military personnel, CIA goons, etc, "broke no law") or, at the very best, buys into the bullshit argument that the law, and the Geneva Conventions and the Conventions Against Torture are "ambiguous". THIS gives them all a legal argument in their defense...but it is worse than this - passage of such a law gives automatic immunity to anyone and everyone involved in waterboarding prior to the law's passage! I suspect this is why Mukasey made the statement in the first place to Schumer, et al. He KNOWS that if they pass such a law, that ex post facto protection goes into effect and no one can be prosecuted for their waterboarding before the law's passage.
Senator Cardin caught onto another aspect of this outrage. He declared that passing such a law is outrageous and ridiculous. It implies that we need to now pass laws against all the different specific torture techniques possible. He asked if we also need to pass a law banning use of the rack. Now, unfortunately, Senator Kennedy is getting in on the unfolding disaster. He has sent out a missive asking for support for his newly proposed legislation that would require that the Army Field Manual be adhered to for ALL captives held by the US government and its agencies. This doesn't escape the ex post facto defense. No law must be passed that in any way declares waterboarding torture and/or illegal by any direct or indirect way. Doing so gives those guilty a legal defense as argued above OR gives them immunity due to ex post facto.
I ask you all, PLEASE, contact your senators and demand that they NOT pass any such laws and explain why: it feeds into the "defense" that the law and the treaties are vague when they are NOT vague and it potentially gives them ex post facto protection.