WASHINGTON — As expected, the Senate Judiciary Committee voted to approve President Bush’s attorney general nominee, Michael Mukasey Tuesday morning.
The vote in the committee was 11 to 8, with two Democrats, Sen. Charles Schumer, of New York and Sen. Dianne Feinstein, of California, supporting Bush’s nominee.
The committee vote ensures that Mukasey's nomination will make its way to the Senate floor and that he'll be confirmed.
On the issue that held up the nomination — the practice known as waterboarding — Sen. Edward Kennedy, D-Mass., said during Tuesday's Judiciary Committee meeting that waterboarding is illegal. He denounced Mukasey for not declaring it to be illegal.
But Sen. Arlen Specter, R- Pa., said the Senate had a chance to specifically ban CIA use of waterboarding last year and voted to not do so. "It really is up to the Congress.... We're the people who ought to decide it," Specter said.
A day earlier, dressed in an orange jumpsuit, Maboud Ebrahimzadeh, an actor from Woodbine, Md., underwent a gruesome mock near-drowning for the news cameras in front of the Justice Department building Monday.
Coughing and gasping, he told reporters, “when water goes into your lungs you want to scream but you can’t, because you know as soon as you do, you’re going to choke. I was terrified for my life.”
This sidewalk political theater performance was a gesture of frustration from Bush administration foes, irate over last Friday’s decision by Schumer and Feinstein to support Mukasey.
In a letter to the Judiciary Committee last week Mukasey wrote that he had not been briefed on interrogation methods that are being used by the CIA and thus didn’t know if waterboarding is being used. His refusal to declare it illegal angered many Bush administration foes.
Their fury grew when Schumer and Feinstein revealed Friday that they’d back Mukasey.
Democrat's support called 'unconscionable'
After Schumer’s announcement Friday, a Daily Kos blogger wrote, “This is unconscionable.”
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“Wow, thanks for selling us out, guys,” another poster on Daily Kos wrote.
“Chuck Schumer and Dianne Feinstein just green-lighted torture,” claimed blogger Philip Baruth at the Vermont Daily Briefing.
For “Big Tent Democrat” at the web site Talk Left, the headline was, “Schumer and Feinstein Say Yes to Waterboarding.”
Video: Mukasey on waterboarding “I never want to hear Schumer pontificate about anything again,” wrote “Big Tent Democrat.”
According to the dissident group Democrats.com, Schumer and Feinstein “embraced waterboarding and dictatorship by announcing their support for Mukasey. But Mukasey's nomination can be defeated if 40 Democrats support a filibuster — and it takes just one Senator to start one.”
No filibuster in view
But as of Monday afternoon, no Democratic senator had indicated that he or she would launch a filibuster, which would kill the nomination by blocking it from coming to a vote.
Clark Kissinger, a veteran left-wing activist and one of the organizers of Monday’s mock waterboarding event, said he wasn’t surprised that Schumer and Feinstein pushed Mukasey’s nomination over the top.
“The modus operandi of the Democrats has been to allow their presidential candidates to come out against evil, while the Democrats assured that there were enough votes in Congress to ensure that the evil progressed,” he said.
“They hold out the carrot to Democratic voters that maybe there’ll be some changes if Democrats get elected.”
Ebrahimzadeh said he agreed to play the waterboarding victim because he wanted “people to see exactly what it is before they come to a full understanding.”
He said he was “very much surprised” that Feinstein and Schumer would support Mukasey. “This is supposed to be a democracy; we elect people who are supposed to represent us and represent our beliefs.”
He said he did think things would change once the Democrats took control of Congress last January. “I had a bit more faith” right after the 2006 elections, he said. “And I’m a bit disappointed.”
But it is not certain whether there will be any negative effect on Democrats’ chances in 2008, that the sense of letdown will impair fundraising or voter turnout.
Democratic leaders in Congress have dismayed many anti-Iraq war voters by not cutting off funding for the war; by giving short-term approval to the National Security Agency’s surveillance of calls entering and leaving the United States; and, now, by paving the way for Mukasey’s confirmation.
There was additional frustration among Democratic allies when Feinstein supplied the crucial Judiciary Committee vote three weeks ago to allow Bush appeals court nominee Leslie Southwick to win confirmation.
“We are deeply disappointed in the Senate Democrats who acquiesced to the President today on Southwick’s nomination. That’s not what Americans voted for when they gave Democrats a majority in the Senate,” said People for the American Way Legal Director Judith E. Schaeffer.
Bush's recess appointment power
On Sunday, Feinstein appeared on CNN’s Late Edition and praised Mukasey as “a bright, independent figure, well-steeped in national security law.”
And she made the pragmatic point that had the Judiciary Committee scuttled Mukasey’s nomination, Bush could have waited for the Senate to recess and then given him a recess appointment.
Feinstein suggested that when the Judiciary Committee takes up legislation this week to provide rules for the NSA surveillance it add an anti-waterboarding amendment to it.
That NSA legislation is, in fact, the next big test for Democrats to try to burnish their appeal to anti-administration forces.
The Senate Intelligence Committee has OK’d a bill to grant immunity to the telecommunications companies who cooperated in the NSA surveillance program. The ACLU vehemently opposes granting the firms immunity.
This week the Judiciary Committee takes up that bill.
The ACLU is representing several plaintiffs who claim that their rights were violated by the NSA surveillance program.
ACLU lobbyist sees telecoms' power
Caroline Fredrickson, the director of the ACLU Washington Legislative Office, said in a briefing for reporters Monday, “It is so troubling that Congress would consider providing immunity, intervening in these court cases and dismissing them without having the opportunity for the cases to be heard by a court.”
Fredrickson added wryly, “As someone who lobbies on the Hill regularly, we’re always rubbing up against the phalanxes of telecom lobbyists who are up there. I think members of Congress are feeling a great deal of pity for the sad circumstances that telecoms might find themselves in.”
Members of Congress she said, “are hearing from them on a regular basis as they attend their fundraisers. So we understand why there’s so much resonance for those arguments.”
When the Intelligence Committee OK’d the NSA bill, Feinstein and Sen. Sheldon Whitehouse, D- R.I., voted for it, with the telecoms' legal immunity included. The two Democrats will be the focus of ACLU lobbying this week since they also serve on the Judiciary Committee.
“We were dismayed” by the Intelligence Committee action, Fredrickson said, “I wouldn’t say we were entirely surprised.”
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