Paul Kane at the Washington Post the other day asked if Diane Feinstein was "the next Joe Lieberman."

She's not the "next" Joe Lieberman, she's been his twin for years and I'm glad people are taking notice. Examples from the past five years, in reverse chronological order:

• 2007: Feinstein crosses the aisle to support the confirmation of Judge Leslie Southwick, despite strong objections from liberal and civil rights groups.

• 2006: She co-sponsors Sen. Arlen Spector's FISA bill which would have made it easier for the NSA to bypass FISA's requirement of a court order. According to her own description of the bill:

The bill would create a new authority that would allow the Attorney General to designate specified FBI and NSA supervisors to begin such emergency surveillance without a warrant so long as the Attorney General is notified within 24 hours of the commencement of the wiretap and approves the surveillance within three days.

She also supported the flag-burning amendment.

• In 2005, she supported inserting the anti-meth bill into the Patriot Act. I wrote then, "I'm not surprised. She's has as little in common with true Democrats as Joe Lieberman." If you're wondering why you have to show id to buy sudafed and other common cold pills, as if that will deter the manufacture of meth, she co-sponsored that part.

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Can we please look forward instead of back? I don't want to waste time trying to impeach Dick Cheney or George Bush.

Let's spend our energy trying to get a better President and Vice President in 2008.

Both parties in Congress today played games with Dennis Kucinich's impeachment bill. It now goes to the Judiciary Committee where I bet it never sees the light of day or debate. KagroX at Daily Kos explains what happened.

Colorado Congresswoman Diana DeGette has just released this statement (no link, received by e-mail):

“Congressman Dennis Kucinich’s resolution raises important questions that require more than just 60 minutes of discussion on the House floor. That is why I voted to refer his resolution to the Judiciary Committee for the Committee to consider the measure through the regular process.”

I know many readers will disagree, but let's be practical. The time to impeach, if there was one, was after we learned Bush and Cheney lied about getting us into war in Iraq. It's too late now and counterproductive.

President Bush is now less popular than Richard Nixon.

By 64%-31%, Americans disapprove of the job he is doing. For the first time in the history of the Gallup Poll, 50% say they "strongly disapprove" of the president. Richard Nixon had reached the previous high, 48%, just before an impeachment inquiry was launched in 1974.

[Photo, taken by me in June, 2007, is of a mask located at Hunter Thompson's Owl Farm.]

Statement of Senator Dick Durbin

Senate Judiciary Committee Markup
Nomination of Judge Michael Mukasey to be Attorney General,November 6, 2007

Judge Mukasey has a distinguished record of public service and, but for one issue, speaks with clarity on the law. His nomination hinges on that issue: the cruel, inhuman and degrading treatment of prisoners held by our government.

On that issue, the late historian Arthur Schlesinger Jr. said this about the Bush Administration’s legal defense of torture: “No position taken has done more damage to the American reputation in the world—ever.”

Alberto Gonzales was an architect of this Administration’s torture policy. As White House Counsel, he recommended that the President set aside the Geneva Conventions, calling them “quaint” and “obsolete.” And he requested and disseminated the infamous torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure or death.

In light of this outrage by our former Attorney General, there is a heavy burden on Judge Mukasey to make his views on torture clear. I am sorry to say that he has fallen short.

During his confirmation hearing, I asked Judge Mukasey whether the torture technique known as waterboarding is illegal. He refused to answer this question.

To give Judge Mukasey a chance to clarify his views on waterboarding, I wrote him a letter, which all ten Democratic members of the Committee signed. We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal?

Judge Mukasey refused to say whether waterboarding was illegal because, quote, “hypotheticals are different from real life” and it would depend on, quote, “the actual facts and the circumstances.”

This is not a “hypothetical.” Waterboarding, or simulated drowning, is a torture technique that was used in the Spanish Inquisition. And today it is used in Burma against democracy activists.

There are no “facts and circumstances” in which we should condone waterboarding. The Judge Advocates General, the highest-ranking military lawyers in each of the U.S. military’s four branches, testified unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.

Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners. And our own State Department has long recognized that waterboarding is torture and cruel, inhuman and degrading treatment and has repeatedly criticized countries such as Sri Lanka and Tunisia for using waterboarding.

In a recent statement, Senators McCain, Warner, and Graham said, quote, “Waterboarding, under any circumstances, represents a clear violation of U.S. law. … anyone who engages in this practice, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution.”

These Republican Senators, the JAGs, and our State Department did not need to be briefed on the Administration’s interrogation program to conclude that waterboarding is illegal. Neither should Judge Mukasey. And because he has not been briefed, offering his opinion on waterboarding won’t give away any secrets.

Consider the risk if we do not speak clearly about waterboarding and torture. By what moral authority can we condemn repressive governments like Burma that use waterboarding? And how can we speak with moral clarity in demanding that enemy forces not subject American prisoners to waterboarding?

Let me address this notion that Mukasey should be spared from offering a straight answer on waterboarding because our laws and policies are unclear on the subject. America’s position on waterboarding was clear enough to convict Japanese soldiers who tortured American soldiers during World War II and clear enough for the Bush Administration to condemn waterboarding by other countries in the State Department’s annual Human Rights report.

Judge Mukasey’s position on waterboarding is troubling, but there are other serious concerns.

I asked Judge Mukasey about torture techniques other than waterboarding, including painful stress positions, threatening detainees with dogs, forced nudity, and mock execution. The JAGs told me that each of these techniques is illegal. But Judge Mukasey said the exact same thing about these torture techniques as he did about waterboarding: they are “hypothetical” and whether they’re legal would depend on “the actual facts and circumstances.”

Judge Mukasey is not alone in this legal dodge. During a July 24th hearing, I asked Attorney General Gonzales whether it would be legal for a foreign government to use these torture techniques on an American citizen. He said, “[I]t would depend on circumstances, quite frankly.”

Judge Mukasey also refused to say whether he agrees with President Bush, Secretary of State Condoleeza Rice and Defense Secretary Robert Gates that the Guantanamo Bay detention facility should be closed. Instead, he told me that Guantanamo is a “fright wig” used by the Administration’s critics and that detainees at Guantanamo receive “three hots and a cot, health care better than many Americans, and taxpayer-funded Qurans.”

There are serious questions about the involvement of controversial Justice Department nominee Steven Bradbury in defending illegal spying and torture. But Judge Mukasey had this to say: “It is my understanding that Mr. Bradbury is a highly competent and dedicated public servant.” But when I asked about the nine fired U.S. Attorneys, Judge Mukasey punted, saying, “I am not sufficiently aware of the job performances of these individuals to offer comment.”

In contrast to his refusal to comment on the legality of waterboarding Judge Mukasey was willing to reach other legal conclusions. Take one example: the controversial issue of retroactive immunity for telecom providers who participated in the NSA warrantless surveillance program. Although he has not been briefed on the facts and circumstances of this highly-classified program, Judge Mukasey nonetheless stated, “retroactive immunity in my judgment would appear appropriate.”

Take another unsettled legal question: whether the Second Amendment secures an individual right to bear arms. Here is what Judge Mukasey told me: “Based on my own study, I believe that the Second Amendment protects an individual right to keep and bear arms.”

In other words, Judge Mukasey agrees with the Bush Administration when it comes to retroactive immunity and the Second Amendment. Why is he willing to take a position on these controversial issues, but unwilling to take a position on waterboarding?

Some have argued that President Bush won’t nominate anyone who will speak clearly on the issue of torture. That may be true, but I would much rather have an Acting Attorney General for the next 14 months than have the Senate give its consent to an Attorney General who refuses to repudiate a cruel and abusive technique that has been regarded as torture for over 500 years.

Finally, many of my colleagues and editorial writers argue that the fate of Judge Mukasey should not be decided by just one issue. But many of us have said that issues like race and the equality of women really are so fundamental that they transcend many other concerns.

When the history of this time is written, the issue of torture will define America’s values in the age of terrorism. Judge Mukasey’s responses to our questions on the issue of torture make it clear that he does not understand the challenge of this moment in our history.

Statement Of Chairman Patrick Leahy
On The Nomination Of Michael B. Mukasey To Be Attorney General Of The United States

November 6, 2007

I spoke in Vermont last Friday about my decision to vote against the President’s nomination. I wish to emphasize a few important points this morning.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This Administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks of those governments that approve of torture. This President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions or disregard U.S. statutes such as our Detainee Treatment Act and War Crimes Act. They should not be allowed to overturn more than 200 years of our Nation’s human rights and moral leadership around the world.

The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts, and the American people in the dark about what they are doing. The President says that we do not torture, but had his lawyers redefine torture down in secret memos, in fundamental conflict with American values and law.

I agree with the Generals, the Admirals, and our JAG officers that waterboarding is torture and is illegal. If an American were waterboarded anywhere in the world, would we have to know the “circumstances” and purported justifications for it before condemning it? Of course not.

Some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one. Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this President.

But the real damage of this argument is not its futility. The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding. In fact, we do. No Senator should abet this Administration’s legalistic obfuscations by those such as Alberto Gonzales, John Yoo, and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years.

When a top legal adviser at our State Department cannot say that the waterboarding of an American is illegal, and our State Department cannot forcefully rule it out as a “technique” that might be okay for other countries’ foreign intelligence services to use against U.S. citizens, we see how far wrong this Administration has headed. When asked at a recent public debate whether he could imagine any circumstance in which waterboarding could be justified on an American national by a foreign intelligence service, John Bellinger of the State Department said, “one would have to apply the facts to the law” and when pressed he said that he was not willing to “include it or exclude it” and that he did not want to “get involved in abstract discussions.” That is so wrong that it is chilling.

When it comes to our core values – the things that make our country great and that define America’s place in the world – it does not depend on the circumstances. America, the great and good Nation that has been a beacon to the world on human rights, does not torture and should stand against torture.

That is not what America stands for. Indeed, the better example is set by the Army Field Manual, which instructs our forces to consider how we would react if what a soldier was about to do to someone was done to an American soldier.

In their recent letter to the nominee, Senators Warner, McCain, and Graham recognize, as I do and as I hope all Senators do, that: “Waterboarding, under any circumstances, represents a clear violation of U.S. law.”

Finally, when the Administration and others say that we cannot say whether America waterboards people because it would tip off our enemies, they have it precisely wrong. That is about as effective as Saddam Hussein hinting that he had weapons of mass destruction when he did not in order to impress his enemies. In refusing to say that we do not waterboard prisoners, we give license to others. When the United States cannot state clearly that waterboarding is torture and illegal and will not be tolerated, what does that mean for other governments, and what comfort does that provide the world’s most repressive regimes?

I wish that I could support Judge Mukasey’s nomination. I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a “confirmation contortion.” When many of us voted to confirm General Petreas, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President’s war policies. Just as I do not support this President’s Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power.

No one is more eager to restore strong leadership and independence to the Department of Justice than I. What we need most right now is an Attorney General who believes and understands that there must be limitations on Executive power. America needs to be certain of the bedrock principles in our laws and our values that no President and no American can be authorized to violate. Accordingly, I vote no on the President’s nomination.

No surprise here, but the Senate Judiciary Committee today voted to send Michael Mukasey on to a full Senate vote for confirmation as Attorney General.

The vote was 11 to 8, with two Democrats, Senators Charles E. Schumer of New York and Dianne Feinstein of California, joining all nine Republicans on the panel in backing the nominee. Eight Democrats voted against Mr. Mukasey.

Feinstein's vote is predictable. She hasn't been a Democrat or a progressive for years, in my opinion, with her constant joining with Senators like Orrin Hatch to promote more tough on crime bills.

Schumer is more of a disappointment. Not because he is a progressive on criminal justice issues and this is a change of hat for him -- he isn't -- but because it seems like he voted for Mukasey just to avoid looking like a jerk for suggesting his name in the first place. In other words, he cares more about his reputation than what's good for the Justice Department.

Of course, Schumer says otherwise.

Update: Here are Sen. Patrick Leahy and Dick Durbin's statements.

Alliance for Justice has an analysis up (pdf) of Attorney General nominee Michael Mukasey's written answers to the questions posed by the Senate Judiciary Committee. It includes the question, answer and AFJ's analysis.

Colorado Senator Ken Salazar said yesterday he might oppose Mukasey. Details on that here.

Crooks and Liars says Bush is playing the 9/11 card to force the Mukasey nomination and provides the video of Bush's latest comments.

Bump and Update (10/31): The show starts at 10:00 pm ET. It's Channel 107 on Comcast, check their website for other cable systems.

Original post (10/30)

Maybe someone will tell Attorney General nominee Michael Mukasey to watch Current TV tomorrow night at 10:00 pm ET.

On Wednesday, October 31st at 10pm ET/PT, Current TV gives viewers a real look at what Waterboarding entails when two ex-Survival, Escape, Resistance and Evasion (SERE) instructors administer a controversial interrogation technique to Current Vanguard Journalist Kaj Larsen.

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Via TPM:

President Bush's nominee for attorney general told the Senate Judiciary Committee on Tuesday that he does not know whether waterboarding is illegal. He pledged to study the matter and to reverse any Justice Department finding that endorses a practice that violates the law or the Constitution. "If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," Michael Mukasey wrote to the committee's 10 Democrats.

Incredible. Shameless. Outrageous. Disqualifying.

I've been waiting to write about Colorado Congressman Tom Tancredo's retirement announcement until my post went up at 5280. It's there now, as is Jason Bane's about who may succeed him.

My take (and yes, it's a pretty gracious one for me, considering how off-the-wall I think he is on immigration):

It sounds like he’s tired and needs to regroup and refocus. It’s understandable. He’s been running on a shoe-string budget. He doesn’t fly on chartered jets and he doesn’t stay in luxury hotels like his competitor, Rudy Giuliani.

I may not agree with his politics but it’s hard not to credit the passion and stamina he’s shown to date. All in all, I think he’s made a wise decision for him and for Colorado.

I'm actually kind of sad we won't have him to kick around any more.

Lawyers for Sen. Larry Craig filed their "Statement of the Case" (pdf) yesterday in the appeal from the court's denial of his motion to withdraw his guilty plea.

They have added a argument that his conduct was constitutionally protected and the statute under which he was charged is overbroad. The ACLU previously included this argument in a friend of court brief on his behalf.

His arguments now:

• the disorderly conduct statute is unconstitutional as applied to the facts of Craig's case
• the plea was not accurate, voluntary or intelligent
• the evidence was insufficient to support the plea
• the plea is invalid because the judge never signed anything approving it.

Ten Democrats on the Senate Judiciary Committee sent a letter to Attorney General nominee Michael Mukasey today. You can read it here.

Shorter version: stop mincing words and condemn water boarding:

Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subjected to this abusive technique. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners. It also makes it more difficult for the United States to condemn repressive governments that use waterboarding on their own citizens. We are particularly troubled by recent reports that the Burmese military has used this form of torture against democracy activists. Human rights abuses such as this have rightly prompted the Administration to impose additional sanctions against the Burmese regime.

Please respond to the following question: Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations?

My latest thoughts on Mukasey and waterboarding are in a post I wrote this morning for Firedoglake on the mistrial in the terrorism funding charity trial.

Once Mukasey refused to say that waterboarding is torture, he lost his way home. I can just picture him leaving the confirmation hearing. He’s got a piece of the waterboard stuck on the sole of his shoe, like you know what, and no matter how many times he tries to scrape it off, it’s still there. The piece won’t leave Muckasey. It’s there to remind him that he’s one of them now. He’s solid with the Administration’s refusal to promise to discontinue waterboarding.

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