Too Bad Justice Sanders Ain’t Black

I like what the Obama team is doing with Hillary at State, Jones at the NSC, and Gates at Defense, but Eric Holder at Justice is a stinker. I recognize the need for “diversity” in selecting and staffing the cabinet. But the next head of the Justice Depatment needs to be a person of impeccable integrity and courage.

Washington state Supreme Court Justice Richard B. Sanders (seen below, right, talking to Justice Sandra Day O’Connor at a 2006 University of Washington Law School event in Seattle, Washington) is a model candidate in my view. He heckled current Attorney General Mukasey at last week’s soiree for the Federalist Society. Mukasey was joking about ignoring the Geneva Conventions:

In his speech, Attorney General Mukasey justified the Bush administration’s policies in the War on Terror, which included denying meaningful hearings for prisoners in Guantanamo, and other questionable tactics, all in the name of national security. Mr. Mukasey said those who criticize the Administration for abandoning provisions of the Geneva Conventions fail to recognize that “… Al Qaeda [is] an international terrorist group, and not, the last time I checked, a signatory to the Conventions.” Although the United States is a signatory, and these Conventions prohibit torture, the audience laughed. Attorney General Mukasey received a standing ovation. I passionately disagree with these views: the government must never set aside the Constitution; domestic and international law forbids torture; and access to the writ of habeas corpus should not be denied.

Candidly, I wish Mukasey had suffered a stroke and been forced from his job. He dishonors America with this nonsense. Anyway, here is what Sanders, an elected justice on the Washington State Supreme Court, did:

The program provided no opportunity for questions or response, and I felt compelled to speak out. I stood up, and said, “tyrant,” and then left the meeting. No one else said anything. I believe we must speak our conscience in moments that demand it, even if we are but one voice.

I hope those who know my jurisprudence will agree that to truly love the Constitution is to uphold it, to speak out for it, not just in times of peace and prosperity, but also in times of chaos and crisis.

I did not “heckle” Attorney General Mukasey, and I did not disrupt the meeting, as those who watch the video of his speech on the Federalist Society’s website will discover. I left before Mr. Mukasey had his frightening collapse. I learned of his collapse later, from news reports. It should go without saying that, despite our vastly different views on what constitutes upholding the rule of law, I hope he continues to recover and remain in good health.

For Mukasey and other so-called conservatives to insist that the threat of terrorism is so grave and so unique that we have no obligation to adhere to international conventions governing the treatment of prisoners, torture, or genocide is the kind of thinking that Nazi jurists used to justify acts like the Holocaust. And it was the horrors of the Holocaust, the Japanese prison camps, and the Japanese rape of Nanking that laid the foundation for the civilized world to insist that even in the face of possible annihilation, nations and their governments are obligated to conduct themselves with a minimum of morality and ethics.

Torture is not in the eye of the beholder. Torture is defined very precisely in the international convention:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Only people incapable of reading would argue there is no acceptable or legal definition of torture.

Which brings me back to Eric Holder. Holder, unfortunately, already is on the record stating that the Geneva Convention does not apply to the people we have captured during our Global War on Terrorism. Here he is back in 2002 on the matter:

Holder needs to be very clear about one issue–does the United States have the unilateral right to declare someone a terrorist and hold them indefinitely without trial and subject them to harsh interrogation. The Bush Administration insists that the answer is yes. We do not yet know what the position of the Obama Administration will be in practice.

As for me and my house, there is no room for compromise on this. No government in the world has the inherent right to unilaterally declare someone a terrorist or enemy of the state and hold them indefinitely. That is the position of tyrants. No matter how evil or depraved a person is, they are still entitled to due process. Adolf Eichmann was a monster. He had the blood of millions on his hands. But Israel did not use his evil to justify using evil against him. My view is that if Israel can give due process to the mastermind of the Holocaust surely we are civilized and strong enough to do the same to Islamic jihadists.

That is a point that Judge Sanders clearly understands and has the courage to express. We need a person of Sanders’ courage and integrity at the head of Justice. I don’t think Eric Holder has demonstrated the backbone necessary.