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Mukasey's Nuremburg defence
February 8, 2008 6:31 AM   Subscribe

In testimony before the House Judiciary Committee yesterday, US Attorney General Michael Mukasey refused to investigate allegations of illegal waterboarding and wiretapping, arguing that the Justice Department could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion, such as those written by John Yoo authorizing torture, even if that opinion turned out to be wrong and the behavior criminal. (The former head the Office of Legal Counsel has described these memos as "advance pardons" for lawbreaking.) Mukasey also told the Committee that he would not enforce contempt citations against former White House officials who refused to respond to Congressional subpoenas.
posted by unSane (110 comments total) 7 users marked this as a favorite

 
Traitors.
posted by LordSludge at 6:38 AM on February 8, 2008 [5 favorites]


Sure, why not? Cheney is the fourth branch of federal government and above the US Constitution, so why not have Mukasey set up the fifth branch to avoid his own duties to enforce and defend the Constitution?

When we're in trouble with the law, we should all be so lucky as to set up our own separation of powers.
posted by Blazecock Pileon at 6:39 AM on February 8, 2008 [3 favorites]


What is it someone has to type here? Oh yea, that's right...

Surely, this will...

Goodness, it's been so long since I've heard something really outrageous, I can feel it again! Either things have been quiet, or too newsfiltery for posting. Or maybe I've been too busy w/moving to notice.
posted by Goofyy at 6:43 AM on February 8, 2008 [2 favorites]


Infuriated... beyond... rational... thought...
posted by Pope Guilty at 6:47 AM on February 8, 2008 [3 favorites]


Man, and I thought interviewing potential employees was tough. Congress got fucked on this one.
posted by butterstick at 6:53 AM on February 8, 2008


I didn't want to editorialize in a FPP, but WTF America?
posted by unSane at 6:54 AM on February 8, 2008


Before one slams the Bushies, it's fair to remember that this person is there because six Democrats (plus Uncle Joe) voted for him. An actual political party, instead of the Democrats, would have sent this man home. Mukasey is one of the many, many cases (close to 100% of the time) when congressional Democrats have happily rolled over hoping for their master, George W, to rub their bellies.

He was just a nominee. Congress is, allegedly, in the hands of the opposition. That's what oppositions do, they shoot down nominess such as this one. Instead, he's AG. And you cannot even blame the Supremes like in 2000. Suck it up, he's there doing this kind of sub-banana republic stuff because the Democrats sent him there.

Anyway: in the unlikely case that the Republicans lose the White House in November, get ready for a lot of these decisions by the Justice Department. There are a lot of criminals to be made invulnerable, before the Bushies leave town. And Mukasey, allowed in by the Democrats, is the guy who'll nmake the invulnerable.

By the time Mukasey leaves office next January, John Mitchell will look like Thomas Jefferson.
posted by matteo at 6:55 AM on February 8, 2008 [15 favorites]


Well, this is certainly something nobody could have predicted!

How To Get Rich Using Only Modest Typing Skills

Step 1: Get hired at the Justice Department.
Step 2: Type a memo that says stealing is A-OK.
Step 3: Steal.
Step 4: There is no step 4.
posted by DU at 6:56 AM on February 8, 2008 [7 favorites]


This is the sort of power play common to the US government. One side says, "we're investigating you"; the other side says, "you can't, I won't submit to questions". Then the first side says, "Oh yeah? Here's a subpoena, bitches". And the other side says, "We don't recognize your authoritay". Then everyone makes for the nearest news show to bitch about the other side; and then, you guessed it, it's backslapping and drinks for everyone as they all meet in Martha's Vineyard.
posted by rockhopper at 6:58 AM on February 8, 2008 [5 favorites]


Before one slams the Bushies, it's fair to remember that this person is there because six Democrats (plus Uncle Joe) voted for him. An actual political party, instead of the Democrats, would have sent this man home. Mukasey is one of the many, many cases (close to 100% of the time) when congressional Democrats have happily rolled over hoping for their master, George W, to rub their bellies.

I'd rather slam the Bushies for, you know, nominating him in the first place and thinking that he's something other than a criminal piece of shit.
posted by Pope Guilty at 6:58 AM on February 8, 2008 [3 favorites]


who'll make them invulnerable
posted by matteo at 6:59 AM on February 8, 2008


...in the unlikely case that the Republicans lose the White House in November...

Not to make this into another candidate horserace thread, but I just don't see how this is unlikely. The unpopular party has a candidate they hate. The popular party has a choice of 2 candidates one of which they love and one of which they like pretty OK.

I mean, just imagine McCain and Obama up on the same stage. Young, fresh-faced, full of energy and charm and charisma and hope vs Yet Another Bald Old White Guy Talking Boring And Unpopular Iraq Policy.
posted by DU at 6:59 AM on February 8, 2008 [1 favorite]


There's a simple solution to this problem. Congress should write up a new Independent Counsel law and let that guy (or gal) investigate the DOJ and the Administration.

If they work fast, the new law will be there to greet the new Democratic President.
posted by notyou at 7:02 AM on February 8, 2008


And really, I think the Nuremberg laws are pretty clear about what's supposed to be done to the Bush Administration.
posted by Pope Guilty at 7:02 AM on February 8, 2008 [6 favorites]


I'd rather slam the Bushies for, you know, nominating him in the first place

he did his job. it's the opposition that didn't. it's called Politics 101; the Republicans are very proficient at it, the Democrats aren't. They haven't blocked one significan thing that Bush wanted since they took back Congress. Bush got his war funding, didn't get any deadlines for withdrawal, no serious congressional inquiry, nothing.


Oh, and love the withdrawal from Iraq quickly achieved by the Congressional Democrats, by the way. I mean, that's what they had been elected for, after all.
posted by matteo at 7:03 AM on February 8, 2008


How about slamming the Democrats for, you know, rolling over like lapdogs during Mukasy's confirmation? But there's plenty of blame to go around.
posted by The Card Cheat at 7:04 AM on February 8, 2008


I am at a loss to explain why the Democratic establishment has rolled over for the administration. Their majority is slim, but that's no reason to go full-bore lapdog as they've done. If someone can explain it to me, I'll be in my bunker.
posted by waraw at 7:05 AM on February 8, 2008


I mean, just imagine McCain and Obama...

That's not the potential matchup that makes me nervous.
posted by The Card Cheat at 7:06 AM on February 8, 2008 [4 favorites]


I just don't buy the equivalency between evil and incompetent opposition to evil. I mean, sure, the Shire may not be doing a great job of resisting Saruman's noxious influence, but he's Saruman FFS.
posted by Pope Guilty at 7:06 AM on February 8, 2008 [4 favorites]


Fucking pussy Democrats. It is amazing just amazing that every single time the democrats have a veto over bush, every time they have the opportunity to prevent something they don't. As if they think that this time would be different, or that it's required that they be polite. It's insane!

every single time.

Mukasey refused to say whether or not he thought waterboarding was torture in his senate confirmation, but the democrats voted for him anyway. And now look, he says it's not torture (or, actually he says it would be torture if it was done to him)

Oh and hey, He won't enforce contempt citations from congress against members of the administration either).

The thing is, since '06 Bush has had to ask permission for this stuff, and even before then the democrats could have filibustered a lot of stuff, but they chose not too and what do you know. every single time the Democrats give Bush an opportunity to fuck things up, he takes it.

And, now that the democrats are in charge, the republicans are filibustering absolutly everything.
posted by delmoi at 7:08 AM on February 8, 2008


His position isn't unreasonable. If the law is unclear, government officials should be able to rely on DOJ opinions. I think the FPP's phrasing of "even if that opinion turned out to be wrong and the behavior criminal" is a bit disingenuous, since we're not really talking about the law "turning out" to be anything--we're talking about subsequent administrations prosecuting acts of former administrations that weren't clearly illegal at the time committed.

Now, maybe Mukasey is wrong, and nobody could justifiably rely on the torture memos, because there wasn't in fact a real open question of law, but this is a different question. I have a feeling a lot of people are going to insist this is the case, based more on their emotions than any actual knowledge about torture law, but that simply goes to show how politicized this issue is. Are politically driven criminal prosecutions really a good idea?
posted by Mr. President Dr. Steve Elvis America at 7:08 AM on February 8, 2008 [1 favorite]


"Now you see that evil will always triumph, because good is dumb."
posted by Blazecock Pileon at 7:09 AM on February 8, 2008 [4 favorites]


Are politically driven criminal prosecutions really a good idea?

I'm sure Linda Tripp would say yes.
posted by Blazecock Pileon at 7:13 AM on February 8, 2008 [1 favorite]


His position isn't unreasonable. If the law is unclear, government officials should be able to rely on DOJ opinions. I think the FPP's phrasing of "even if that opinion turned out to be wrong and the behavior criminal" is a bit disingenuous, since we're not really talking about the law "turning out" to be anything--we're talking about subsequent administrations prosecuting acts of former administrations that weren't clearly illegal at the time committed.

The Republicans can insist that they weren't clearly illegal all they want, it's still a filthy lie.

Are politically driven criminal prosecutions really a good idea?

Ohnoes, they're prosecuting criminals! How dare they!
posted by Pope Guilty at 7:14 AM on February 8, 2008


If the law is unclear...

BEEP BEEP BEEP NON-FACTUAL HYPOTHETICAL DETECTED
posted by DU at 7:20 AM on February 8, 2008 [7 favorites]


The Republicans can insist that they weren't clearly illegal all they want, it's still a filthy lie.

I can't help but think that your conclusions is based more on your moral opposition to torture than anything else.
posted by Mr. President Dr. Steve Elvis America at 7:22 AM on February 8, 2008 [1 favorite]


Troll, meet trollbait.
posted by kittens for breakfast at 7:24 AM on February 8, 2008 [1 favorite]


i've never understood why people are asking other people if waterboarding is torture.

Why are they asking that? More importantly, why are they wasting time asking it of people who will be in trouble if the answer is "yes of course it is"? you KNOW the answer. you don't need to ask them. you need to decide what you're going to do about it.
posted by galactain at 7:26 AM on February 8, 2008 [5 favorites]


I can't wait to be outraged by the Democrat president doing the exact same thing.
posted by Balisong at 7:31 AM on February 8, 2008


Once again, the "party of personal responsibility" declines to take any.
posted by Legomancer at 7:32 AM on February 8, 2008 [1 favorite]


I think that might make you a Nader voter, Balisong.
posted by notyou at 7:33 AM on February 8, 2008


I think double-M is going to find hell surprisingly wet.
posted by Doublewhiskeycokenoice at 7:34 AM on February 8, 2008 [2 favorites]


What's with the "The Democrats blah blah blah" rhetoric?

I happen to be a Democrat. I can't remember being more disappointed than when Nancy Pelosi took "Impeachment off the table." I'm sorely aggravated that they have continued to fund the Iraq war.

But the fact that they're Democrats means nothing. To point out what that party (or the GOP) has done is the literal definition of politicizing.

These are criminal acts. The people involved should be treated as criminals.

For someone to basically make the case, "well you get what you deserve because you voted for the people who voted for this guy" is preposterous. We vote for who we believe to be the best candidate. If they get in, we should *not* rest on out laurels and say, "Well my vote was cast, now I'll hope for the best." If we don't press our government in to action, they will never take action.

Quit the party politics, folks. It has nothing to do with justice, or what is right.
posted by vertigo25 at 7:37 AM on February 8, 2008 [2 favorites]




I can't help but think that your conclusions is based more on your moral opposition to torture than anything else.

I can't help but think that your confusion is based more on either your self-delusion or the water-muddying done by the RWNM than by anything else.
posted by DU at 7:48 AM on February 8, 2008 [1 favorite]


I am at a loss to explain why the Democratic establishment has rolled over for the administration.

Consider two groups. One group are relatively hardcore Democrats, who want to see us out of Iraq and Bush impeached and people in jail and all that. If alienated, they might stay home instead of voting, losing the Democrats a vote each.

The other group are people who vaguely had to hold their nose to vote for Democrats because Democrats are defeatist pussies who want to sing kumbayah instead of killing terrorists=scary brown people. If alienated, they might go back to voting for Republicans, effectively losing the Democrats two votes each (one less for them, one more for Republicans). Especially once the Republicans get rid of their remaining closeted homosexuals, or at least closet them better, so there's no more embarrassing bathroom incidents or pesky page-raping in the news.

They think that the second group is large enough that they have to avoid looking like defeatist pussies and that, in general, the consequences of alienating the second group are worse than alienating the first group, at least as far as Iraq and war and related subjects go. They might be wrong, but it's hardly difficult to explain.
posted by ROU_Xenophobe at 7:53 AM on February 8, 2008 [1 favorite]


People always bring up WWII with respect to this. Does anyone actually think anyone is going to be executed over any of this. The government operates with such impunity. And I am quite certain whoever is in power next is going to do anything to prosecute those behind all this torture. There will be calls to forgive, forget, etc. That's how it goes.
posted by chunking express at 7:55 AM on February 8, 2008


Let me explain something that (I think) should be obvious to all the people screaming about the Democrats' confirmation of Mukasey.

If the Democrats had refused to confirm Mukasey, the administration would have just nominated an equally unacceptable, possibly worse candidate. If the Democrats had also shot this one down, Bush would have done it again. Lather, Rinse, Repeat.

Now, you may say, "Fine, let them do that, let the Bush administration show how obstinate it is by refusing to nominate a qualified candidate for AG". But this is not how the majority of voting Americans would see it. They would see it as the Democrats being obstructionist. You may think this is stupid, and I'd agree with you, but the stupid people are in the majority, unfortunately.

The stupid people are sold on this idea that Democrats and "Liberals" are all always wrong and evil, while Republicans and "Conservatives" are all always right and noble. This, in a nutshell, is the idea that Reagan sold them. This is, at its core, what is meant when people say that the Republicans have been a "party of ideas". This idea that the Republicans and their goals are the good, noble ideals of America.

In order to subvert this idea two things have to happen:

First, we must, unfortunately, at some point let the Republicans fuck things up to the point that even stupid people can see that they aren't always right and noble.

Second, we need to elect a Democratic candidate who can sell people that Democrats are themselves good and noble.

If we do the first but not the second we'll have a one term president, hamstrung by bickering, which will be better than having another Republican in the short run, but do nothing to fix the idea problem in the long run.

So the Democrat's acquiescing to Mukasey's nomination, and then bitching about his actions later might not be satisfying, but its the wise political move given the situation. Tearing down the Dems for the Repubs wrongs just plays into the Republicans hands.
posted by Reverend John at 8:08 AM on February 8, 2008 [5 favorites]


I mean, just imagine McCain and Obama up on the same stage. Young, fresh-faced, full of energy and charm and charisma and hope vs Yet Another Bald Old White Guy Talking Boring And Unpopular Iraq Policy.
posted by DU at 9:59 AM on February 8


I don't disagree with your conclusion that Obama will win, but I don't think this is the right way to think about it. No one is going to be undecided by the time these two guys are standing on the same stage.

The way to think about it is to start with the 2000 or 2004 map (they are the same except for NM), and figure out which states are going to break for the democrats this time instead of the republicans. It doesn't matter one bit if every voter in CA and NY votes for Obama.

My guess is that in the least, Obama flips OH, everything else stays the same, and he wins. If McCain runs the race like everyone expects him to, Obama has a pretty good chance to flip some states in the south as well. If someone flashes McCain the Queen of Diamonds and he goes nuts, Obama might actually have a landslide.

But it doesn't matter at all how great Obama looks. People have already decided to love him or not. Obama has people throwing him their money, getting them to turn out to vote isn't a problem for him. The question is whether McCain can ingratiate himself with republicans and get them to shop up to vote for him.

That's what will decide the outcome. Remember that for all the myth and optimism, Kennedy barely beat Nixon, and on television Nixon looked like he came out of a casket.
posted by Pastabagel at 8:09 AM on February 8, 2008 [1 favorite]


First, we must, unfortunately, at some point let the Republicans fuck things up to the point that even stupid people can see that they aren't always right and noble.

Boy, you think that would've happened by now.
posted by TheWhiteSkull at 8:14 AM on February 8, 2008


The stupid people media are sold on this idea that Democrats and "Liberals" are all always wrong and evil, while Republicans and "Conservatives" are all always right and noble.
Fixed that for you, Rev. John.
posted by unSane at 8:19 AM on February 8, 2008


If the Democrats had also shot this one down, Bush would have done it again. Lather, Rinse, Repeat.

Thank Cthulu there's no one left in Washington with principles.
posted by ZenMasterThis at 8:21 AM on February 8, 2008


How proud I am to live in a country where we will harass and pursue some athlete for voluntarily injecting him/herself with steroids, or jail someone for voluntarily participating in prostitution, but we refuse to even investigate people for authorizing torture.
posted by gt2 at 8:22 AM on February 8, 2008 [3 favorites]


What I think would be quite funny would be if Obama pulled a Bush. Namely, positioned himself as the uniter, promised to bring the nation together, and then on day one of his administration, ripped the Republicans a new asshole. I don't think he'll do it, but it would be funny. And that's what matters.
posted by unSane at 8:26 AM on February 8, 2008 [7 favorites]


> First, we must, unfortunately, at some point let the Republicans fuck things up to the point that even stupid people can see that they aren't always right and noble.

Facing clear evidence of peril malevolent incompetence, we cannot wait for the final proof -- the smoking gun -- that could come in the form of a mushroom cloud.
posted by The Card Cheat at 8:28 AM on February 8, 2008 [1 favorite]


People always bring up WWII with respect to this. Does anyone actually think anyone is going to be executed over any of this.

No. But it is a simple historical fact to bring up when people question whether or not waterboarding is torture or even illegal. At one point, we found it to be both, and further more, found it to be so abhorrent to our moral compass, that we sentenced people to death for engaging in it.
posted by quin at 8:33 AM on February 8, 2008 [6 favorites]


His position isn't unreasonable. If the law is unclear, government officials should be able to rely on DOJ opinions.

I disagree, since obviously DOJ opinions can be manipulated in order to enable crimes to take place. Which is essentially what the administration did. Rather then going to congress to get new laws passed, they simply wrote lawyerly opinions saying that what they wanted to do was legal.

Now, you may say, "Fine, let them do that, let the Bush administration show how obstinate it is by refusing to nominate a qualified candidate for AG". But this is not how the majority of voting Americans would see it. They would see it as the Democrats being obstructionist. You may think this is stupid, and I'd agree with you, but the stupid people are in the majority, unfortunately.

Well fuck that shit. "We have to let people get tortured because we'll look bad if we don't" is just as bad as torturing people yourself. It is absolutely intolerable and every democrat who thinks that way ought to be primaried out of the party.

I don't disagree with your conclusion that Obama will win, but I don't think this is the right way to think about it. No one is going to be undecided by the time these two guys are standing on the same stage.

Wrong. There are millions and millions of people out there who don't like politics and don't spend all year, year after year keeping up on developments. But they do pay attention during general elections and vote in 'em. The idea that people decide early on is wrong.

That said, I don't think McCain would beat Obama either.
posted by delmoi at 8:40 AM on February 8, 2008


But it is a simple historical fact to bring up when people question whether or not waterboarding is torture or even illegal.

If you need to ask, it's torture. That's really all there is to it. I get where you are coming from, but I feel like there's really no point arguing with people on this matter.
posted by chunking express at 8:43 AM on February 8, 2008


An actual political party, instead of the Democrats, would have sent this man home. Mukasey is one of the many, many cases (close to 100% of the time) when congressional Democrats have happily rolled over hoping for their master, George W, to rub their bellies.

Amen. Blaming the Republicans is like blaming a rabid dog -- they can't help but act horribly; it's in their nature. The Democrats are like the rabid dog's owner who lets it into the yard to play with the kids, because hey, when you wipe the foam away from the dog's mouth, it looks just fine!
posted by scody at 8:44 AM on February 8, 2008 [1 favorite]


If any of y'all legal beagles could go into any detail on the whole "justified reliance" thing, I'd be fascinated. Is this well-trod ground in this context, or is it a handy tack for Mukasey because it sounds good but isn't too well-trod, or, well, what?
posted by cortex at 8:50 AM on February 8, 2008


People always bring up WWII with respect to this. Does anyone actually think anyone is going to be executed over any of this.

By god a man can dream.
posted by Pope Guilty at 8:52 AM on February 8, 2008 [4 favorites]


If this shit keeps up, I'm not going to have any hair left to rip out.

WTF, AMERICA! indeed.
posted by rtha at 8:54 AM on February 8, 2008


"After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war."

Hey! We can't preserve the false illusion of legal uncertainty, when people start quoting historical instances of legal decisions.
posted by Blazecock Pileon at 8:55 AM on February 8, 2008 [1 favorite]


Reid is worthless and weak.
posted by wrapper at 8:58 AM on February 8, 2008


If any of y'all legal beagles could go into any detail on the whole "justified reliance" thing, I'd be fascinated. Is this well-trod ground in this context, or is it a handy tack for Mukasey because it sounds good but isn't too well-trod, or, well, what?
posted by cortex at 11:50 AM on February 8


In this context, their using it to explain that people can't be prosecuted for relying on a legal opinion that some action was not illegal when it turns out it was. In normal contexts, especially criminal ones, ignorance of the law is never an excuse. At most, reliance on a legal opinion would reduce the crime to merely unknowningly breaking the law instead of willfuly, which is usually worse and carries a stiffer penalty.

But the use here is bizarre. A legal opinion never excuses you from prosecution, it's just proof that you acted in good faith and didn't knowingly skirt the law.

What is in fact going on here is that the AG is using these opinions as his own excuse for not prosecuting people in government who broke a law. He's simply decided he's not going to prosecute anyone under this law, and instead of saying that, he's come up with a cockamamie theory to cover his refusal to do his job.
posted by Pastabagel at 8:59 AM on February 8, 2008 [2 favorites]


I seem to recall some kind of treaty which the US signed. This treaty says that signers may not torture. Treaties are law of the land.

The administration authorized torture with full knowledge of the terms of this treaty.

Personally, I think they need a trip to the Netherlands to sort things out. The Hague, perhaps? Oh, that's right, the US isn't an ICC signatory ("If you want peace, work for injustice" is how it goes, right?).

The irony is that I could see old man McCain sending this torture fetish administration up the river for their crimes, but the Democrats would be to afraid to rock the boat.
posted by mullingitover at 8:59 AM on February 8, 2008


Personally, I think they need a trip to the Netherlands to sort things out. The Hague, perhaps? Oh, that's right, the US isn't an ICC signatory

I'm pretty sure the Hague doesn't give a damn about "jurisdiction".

The irony is that I could see old man McCain sending this torture fetish administration up the river for their crimes, but the Democrats would be to afraid to rock the boat.

I can't imagine any circumstances in which a Republican like McCain breaks Republican Rule Number One- Never, ever, ever hold another Republican accountable.
posted by Pope Guilty at 9:04 AM on February 8, 2008


ICHBTTYCIBMOMMMLATAE.

(I can't hep but think that your confusion is based more on my massively-multi latter acronym than anything else.)
posted by symbioid at 9:08 AM on February 8, 2008


.
posted by nobeagle at 9:24 AM on February 8, 2008 [1 favorite]


I would not be so confident either Democratic Candidate will take the White House. Particularly Clinton. I think you all would be wise to start formulating your Plan B's.

Who else besides NPR and Anderson Cooper is covering this torture story? Or even the fucking war for that matter? Think about it. This whole thing with Mukasey has barely got any traction at all. At this point I don't think even a video of Dick Cheney with a blow torch up a catholic school girls ass would spark much outrage anymore.

The fact that major pundits AND candidates fall over each other on live god damned TV attempting to prove which one of them would torture a terrorist motherfucker harder and the media outlets aren't demanding that they all get shipped off to fucking Elba after wards says it all. We, my friends, as a society have jumped the god damned shark.

I'm not even sure if we WANT a liberal administration taking the blame for the next half decade of shit that is going to come down on this country.
posted by tkchrist at 9:26 AM on February 8, 2008 [2 favorites]


If the Democrats had also shot this one down, Bush would have done it again. Lather, Rinse, Repeat.

back when they were a political party, the Democrats shot down two unacceptable SCOTUS nominees chosen by Richard Nixon. at the third try, they got themselves Harry Blackmun. one thing is to withdraw a candidate, to have him or her shot down by the Senate is entirely another, it's a big blow and a loss of political capital. to argue otherwise is to lack a basic understanding of how actual political bargaining works, on any level.

Bush uses his veto as much as he likes. the congressional Democrats could use their version of the veto -- they could shoot Bush's nominees downs, but they choose not to. this won't bring them good things.
posted by matteo at 9:27 AM on February 8, 2008 [2 favorites]


Although I find the activities at issue as outrageous as anyone, I'm not sure this particular claim is as offensive as people here seem to think. This is not that far off the doctrine of qualified immunity, which is settled law. That doctrine holds that individual government agents are not personally liable for violating an individual's civil rights, unless their conduct was clearly illegal. Whether or not the conduct was clearly illegal would be a question for the court, if a prosecution were brought. While this activities were morally repugnant, and clearly torture in a colloquial sense, the very existence of a legal debate would make it seem not "clearly" illegal to most reasonable people.

The main distinction here is that it is the DOJ, not a court, deciding that these individuals should not be found liable. This seems like a sound policy from the Justice Department's perspective. Sure, ignorance of the law is no excuse, but it does seem reasonable that, as a matter of prosecutorial discretion, the DOJ would rather not prosecute people who relied on the legal opinions they issue. It undermines the willingness of individuals to rely on those opinions in the future. While in some cases(such as this one) that's a good idea, most of the time I think we want people who are aware of the Department of Justice's legal opinion to act on that opinion.
posted by Bulgaroktonos at 9:29 AM on February 8, 2008


Blah blah blah. Democrats this, pussies that. Can we please just focus on the core of this story?

The US has now admitted it tortured three people.
The US says torture is illegal.
The Attorney General has said he won't prosecute people for torture.

The only "rule of law" we seem to have is the farce of lawyers mincing words to cover people's asses. I feel bad for the CIA and DoD hacks who thought the DoJ gave them a pass to torture people. But only a little bad. They still belong in jail for war crimes. There's never been any ambiguity about whether torturing people was legal or morally correct. This debate about legal niceties is all obfuscation and smokescreen.
posted by Nelson at 9:30 AM on February 8, 2008 [4 favorites]


A friend of my father's was with the DOJ for a long time, a career guy. He quit 3 years ago because he said, unlike any other time in history, incompetent people with little qualifications but partisan credentials were getting major jobs. He told horror stories about people with stacks of bibles on their desks or framed 10 commandments on their walls next to diplomas from religious universities. And this is a guy who goes to Church every Sunday and teaches Sunday School. He was horrified, said it will take a generation to get the DOJ back to basic competency.
posted by cell divide at 9:31 AM on February 8, 2008 [7 favorites]


>Well fuck that shit. "We have to let people get tortured because we'll look bad if we don't" is just as bad as torturing people yourself. It is absolutely intolerable and every democrat who thinks that way ought to be primaried out of the party.

If the goal is to stop torture from continuing, I think the Dems have probably succeeded. Its hard to know for certain since this thing, even if it is justified, happens in secret. But while Mukasey can plausibly float this idea now that prior waterboarding wasn't considered torture and torture wasn't considered illegal by the DOJ, that won't really stand up for any future incidents given the current political situation. I'd be surprised if any more waterboarding has gone on since the last election.

If the goal is to make sure it doesn't happen again, the Dems need to take decisive political control. That means playing the game, like it or not. Alienating the voters who are too dumb to realize you're taking a principled stand does no good.

>Amen. Blaming the Republicans is like blaming a rabid dog -- they can't help but act horribly; it's in their nature. The Democrats are like the rabid dog's owner who lets it into the yard to play with the kids, because hey, when you wipe the foam away from the dog's mouth, it looks just fine!

You want to make this arguement? Then the owners are the American people who voted in the Republicans. The Democrats are just another dog on the street, owned by a different neighbor. We could do well with a few more Democrat dogs around here.
posted by Reverend John at 9:43 AM on February 8, 2008


back when they were a political party, the Democrats shot down two unacceptable SCOTUS nominees chosen by Richard Nixon. at the third try, they got themselves Harry Blackmun. one thing is to withdraw a candidate, to have him or her shot down by the Senate is entirely another, it's a big blow and a loss of political capital. to argue otherwise is to lack a basic understanding of how actual political bargaining works, on any level.

Bush uses his veto as much as he likes. the congressional Democrats could use their version of the veto -- they could shoot Bush's nominees downs, but they choose not to. this won't bring them good things.


We might have gotten a better short term AG than Mukasey. Hard to know for sure, and I think its doubtful. I still think even if we did that, past torture would be going unpunished one way or another, and subpoenas would still be getting stonewalled. The political cost come November, however, would be the Repubs getting fresh ammunition about "obstructionist Democrats", and probably a few less Dem seats in Congress.

If the Dems are wise, if they can successfully persuade the American public to repudiate the Republican abuses, if they can appear as the reasonable, sensible ones, then there will be plenty of time for the next AG to start handing out indictments. If the next AG is picked by a Republican, and if the Republicans gain seats in Congress, you can kiss any accountability for this administration goodbye.

What do you all want? A short term Pyrrhic victory (if you were victorious at all)? Or a fundamental change?
posted by Reverend John at 10:03 AM on February 8, 2008 [1 favorite]


The Dems in Congress are playing a tactical game ('oversight') in which they are horribly bad at, and are continually outsmarted by the Administration, who are playing a much simpler strategic game ('unitary executive'). All the Admin care about at the moment is running out the clock. There will be no appetite for impeachment or prosecution after the election, whoever gets in, and there's nothing like the time to deal with it now.

I think this whole issue goes to something in American politics which is fundamentally broken and is never talked about. It's simply this: there's no 'Leader of the Opposition'. There's Harry Reid and Nancy Pelosi and Howard Dean and Hillary Clinton and Barack Obama and Uncle Tom Cobley and all and they all have different canoes to paddle.

By contrast, in most parliamentary democracies the opposition has a single figurehead throughout the term of the administration. This doesn't happen in American politics until the six months before the election, at which point the opposition is largely symbolic.
posted by unSane at 10:14 AM on February 8, 2008


He told horror stories about people with stacks of bibles on their desks or framed 10 commandments on their walls next to diplomas from religious universities.

If anyone reading this is in a position to see things like this first hand, you must take a photograph of it for posterity. We absolutely need a photograph of Justice department lawyer with bibles on his desk or a ten commandments framed on the wall next to a diploma from a religious school to explain and summarize the complete absence of rational thought from official policy over the last 8 years.

If you see this, please take a picture.
posted by Pastabagel at 10:16 AM on February 8, 2008


The political cost come November, however, would be the Repubs getting fresh ammunition about "obstructionist Democrats", and probably a few less Dem seats in Congress.

Supposing of course that the media present those charges of obstructionism as reasonable (which they will), and the public gives them any credibility, which is pretty doubtful at this point. It looks to me like most people have decided the Bushers are liars, and don't believe them any more. If Reid and Pelosi would pick up on that and stop trembling in fear of losing all the time, the government might begin to work again, and a grateful Democratic base would respond by supporting the party. As it is now, the Dem base are looking on in exasperation as the Congress they elected continues to act as though the Republicans have a majority.
posted by Kirth Gerson at 10:17 AM on February 8, 2008


I am at a loss to explain why the Democratic establishment has rolled over for the administration.

I have suspected for a long time that they do not have much of a choice. The Bush Administration has proven it will do whatever it takes, no matter how illegal it is, to grab and retain power. If they find themselves facing legal consequences for their actions after they leave office, maybe they just won't leave. Would it be all that difficult for them to create an artificial security crisis and declare Martial Law until 201x, preventing the Congress or the Electorate from doing anything until the "crisis" is over? And by their warped definition of "constitutional crisis", might they respond to a serious impeachment threat by getting their pet Supreme Court to suspend Congressional authority, maybe even sending in troops (led by Gen. Petraeus?) to take Capitol Hill? Is that scenario so far-fetched anymore? And maybe the Democratic Leadership knows this and has very quietly agreed to let the Bushies have what they want as long as they leave office on January 20, 2009. (If so, I hope there's an actual private agreement in place, and hope against hope that Bush intends to honor his side of the deal.) I even wonder if Hillary Clinton's non-opposition to the Iraq War is about believing Bush and Cheney won't let her have the key to the front door of the White House if she's going to upset their little playground in the Middle East. If Barack Obama announces he's taking a "private meeting" with the sitting President, well, I can just guess what he's going to be told. To re-direct scody's rabid dog analogy, if you have a rabid bear in your house tearing up the furniture, do you go in after it with a gun made to shoot birds, which probably can't kill it and might just make it angrier, or do you just open up all the doors, let it go back out into the woods when it's ready to, and just concern yourself with repairing the damage when it's through?
posted by wendell at 10:18 AM on February 8, 2008 [4 favorites]


I think this whole issue goes to something in American politics which is fundamentally broken and is never talked about. It's simply this: there's no 'Leader of the Opposition'. There's Harry Reid and Nancy Pelosi and Howard Dean and Hillary Clinton and Barack Obama and Uncle Tom Cobley and all and they all have different canoes to paddle.

No, the problem is organization. Under the Clinton administration, the Republicans were united behind Gingrich. No Democrat had the guts to attempt to do what Gingrich did.
posted by Pastabagel at 10:18 AM on February 8, 2008


Couldn't someone bring a private prosecution? Why does it have to be the Justice Department?
posted by mr. strange at 10:19 AM on February 8, 2008


Mr Strange, you need standing I think.
posted by unSane at 10:24 AM on February 8, 2008


You want to make this arguement? Then the owners are the American people who voted in the Republicans.

Then who, precisely, voted in the Democrats?

The Democrats controlled Congress when they let Mukasey through. THEY bear responsibility for his confirmation.

The fundamental problem is a winner-take-all two-party system in which the two parties are a fucking credit card's width apart. This is a democracy with no meaningful opposition party.
posted by scody at 10:29 AM on February 8, 2008 [3 favorites]


the two parties are a fucking credit card's width apart

I think the Democratic Party is a little better than that, if not enough. And the real problem is structural. To quote myself: In 2000, in the U.S.A., the involvement of the Green Party helped the most conservative party win the election. And in 2007, in Australia, the involvement of the Green Party helped the next most liberal party win. I haven't seen any emerging democracies in my lifetime emulating our Electoral College System. We need to do some major Constitutional amending before we can even begin to claim to be a Modern Representative Democracy.

Where the Democrats fail most prominently is in their inability to conceive of changing a system that is screwing them royally. There is a lot we have to do to insure that we never get another Bush/Cheney, but, as I suggested before, it's probably best to start that crusade after the rabid bear has gone back into the woods.
posted by wendell at 10:46 AM on February 8, 2008


The Democrats controlled Congress when they let Mukasey through.

I'm pretty sure the point here is they didn't.
posted by XQUZYPHYR at 10:53 AM on February 8, 2008


wendell : if you have a rabid bear in your house tearing up the furniture, do you go in after it with a gun made to shoot birds, which probably can't kill it and might just make it angrier, or do you just open up all the doors, let it go back out into the woods when it's ready to, and just concern yourself with repairing the damage when it's through?

The problem with this analogy is that if we do let it wander back into the woods, we may be safe for now, but there is still a fucking rabid bear out there, just waiting to hurt someone.

So if we don't have the gun capable of putting it down once and for all, we should be calling up all of our friends and asking for help. Because the things is, once an insane wild animal has discovered easy pickings, it will keep coming back, getting bolder and bolder, and destroying your house over and over again. And eventually you will discover that it has become completely impossible to get rid of.
posted by quin at 11:05 AM on February 8, 2008


Couldn't someone bring a private prosecution? Why does it have to be the Justice Department?

As far as I know, there is no such thing as a private criminal prosecution in the US. Maybe I'm wrong, but I'm pretty sure there is no chance that I am. There are private civil suits, obviously, and an individual who was tortured could bring a case that way, but they could only recover monetary damages.
posted by Bulgaroktonos at 11:05 AM on February 8, 2008


Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful. ~ Anacharsis
posted by lalochezia at 11:07 AM on February 8, 2008 [2 favorites]


I was watching a movie the other day called "To End All Wars." It's a not-bad piece of Christian evangelical propaganda from 2001 about Allied POWs in a Japanese camp in WWII. At one point early in the movie, a British officer is being waterboarded by Japanese soldiers as his men look on in horror. One of them exclaims "That's against the Geneva Conventions!"

And then Kiefer Sutherland's character snarls in disgust: "They don't give a shit about the Geneva Conventions."

When I woke up, the paramedics were trying to stuff my brains back in the hole they'd made in my skull when my head exploded.
posted by EarBucket at 11:11 AM on February 8, 2008 [3 favorites]


I would argue that a common opinion is that waterboarding forced the dirty terrorists to tell everything they know, thereby allowing us to avert another 9/11. For many Americans, the end justifies the means, and besides, the terrorists deserved it. It's even quite humane compared what they would do to us.

I DO NOT AGREE WITH THIS, but I think many people think this way. If this is the case, the government is just reflecting the will of the people.

The ACLU generates massive criticism for advocating what is right and they only way they can do that is that they are not subject to popular election.
posted by Daddy-O at 11:14 AM on February 8, 2008


As far as I know, there is no such thing as a private criminal prosecution in the US.

If no-one but the AG can bring forward a criminal prosecution, then the AG is above the law, by definition. If this is true, then your system is fucked. You should thank this Mukaseys joker for bringing the issue to a head.

Don't blame him, just fix the system.
posted by mr. strange at 11:34 AM on February 8, 2008




>You want to make this arguement? Then the owners are the American people who voted in the Republicans.

Then who, precisely, voted in the Democrats?

The Democrats controlled Congress when they let Mukasey through. THEY bear responsibility for his confirmation.

The fundamental problem is a winner-take-all two-party system in which the two parties are a fucking credit card's width apart. This is a democracy with no meaningful opposition party.


The American people voted the Democrats into Congress. Unfortunately (or not, actually) Congress doesn't have the power to nominate the AG, only confirm or reject the nominee. A lengthy fight over who was going to be AG would have been a political loser which would have cost the Democrats in the upcoming election and would not have resulted in any acceptable nominee.

There was no upside in rejecting Mukasey. Do you think anyone would have been investigated and indicted after a cycle of AG rejections? Do you think there would have been fewer incidents of torture during this time? The only result would be the perception among the American voting public that the Dems were failing to do anything, and just being unpleasant jerks who they don't want to vote for. Whether this this perception would be right or wrong is totally irrelevant.

Hell, the whole fact that we've gone past arguing about if these things are illegal to an implicit acknowledgment that, yes, they're illegal but can't be prosecuted now for technical reasons is a win for decency, and you can thank the Democrats for it. If its not enough for you, then the solution is not to blame the Democrats for the Republicans abuses of power, but to take power away from the Republicans.
posted by Reverend John at 11:47 AM on February 8, 2008


As far as I know, there is no such thing as a private criminal prosecution in the US.

I just had a fantasy where the Pinkertons came and executed broad justice on our government. Though it's probably more likely that would be the ones doing the waterboarding.
posted by Llama-Lime at 11:50 AM on February 8, 2008


Looks like I picked the wrong day to quit drinking. At work.
posted by oaf at 12:12 PM on February 8, 2008




And why has this not been in the national papers today?
posted by redbeard at 2:00 PM on February 8, 2008


I tend to assume the real reason the Democrats don't rock the boat is because of the domestic surveillance program.

If someone values their job, their family, and their reputation over the country it's probably pretty easy to stop them from protesting anything too loudly if you have proof of their affair, their addiction, and their gambling habit.
posted by winna at 2:07 PM on February 8, 2008 [1 favorite]


I was going to make that point in the FPP, redbeard.
posted by unSane at 2:09 PM on February 8, 2008


The people who performed the waterboardings are criminals. The people who allowed it are criminals. And the people who condone or ignore it now are criminals. There is no wiggle room here; waterboarding has been regarded as heinous since the Spanish Inquisition. It's not some new and novel technique that represents a "kinder,gentler" form of interrogation.

Mukasey is a liar and, obviously, an idiot. First, he says he can't investigate something that the DOJ formerly regarded as legal. Well, I'm not a lawyer, and even I know the DOJ doesn't fucking make the laws. All kinds of things can be regarded as legal; that doesn't make it so. Second, he claims that he can't say definitively that waterboarding is illegal - he requires "context". Again, an idiotic statement - only slightly less stupid than the people who accept that argument.

Mukasey is just the last recruit in a team of bullies, vermin who long for cover of darkness away from the light of free and democratic process. They believe might makes right and the ends justify the means, damn the cost. They sully our national and personal reputations as law-respecting. They freely spend our hard-won moral high-ground. They spit on everyone, friend and foe, who dares to disagree or question.

Fuck them all.
posted by Benny Andajetz at 3:32 PM on February 8, 2008 [1 favorite]


If no-one but the AG can bring forward a criminal prosecution, then the AG is above the law, by definition. If this is true, then your system is fucked. You should thank this Mukaseys joker for bringing the issue to a head..

Well, that's not true. No one but a government prosecutor can bring a criminal prosecution. For violations of Federal law, that means a Federal prosecutor. In this case the AG himself doesn't ever, to my knowledge, bring a criminal prosecution, but rather the local US Attorneys bring criminal prosecutions in typical situations. In certain circumstances(criminal charges brought against the AG himself) the AG would appoint a special prosecutor, who would investigate and potentially file charges. For a while we had an "independent counsel" system that replaced the special prosecutor system, but these was unmitigated disaster.

Here, what Mukasey is doing is setting DOJ policy. He's saying he will direct the US Attorneys, who work underneath him, not to prosecute in these cases. The immediate authority, however, lies with the US Attorney, who could still file charges. The decision is ultimately the President's since he could remove the AG or the US Attorney for filing charges, and install someone who would dismiss them. This is what the "Unitary executive theory" means in it is least controversial form. The President is the executive, and all executive decisions ultimately derive from him. Because the exercise prosecutorial discretion is an executive decision, it is exercised by the President's subordinates, but acting on his behalf.

Now, from one perspective, this system looks like the AG is above the law, since he controls whether he is prosecuted by the Federal government, but there are a couple things that need to be recognized. One, this only applies to Federal prosecution, which is a fairly limited area of criminal charges. Two, political realities mean that the AG is unlikely to engage in significant criminal activity uncharged. If the AG did engage in some sort of Federal criminal activity, and refused to appoint a special prosecutor there would be significant pressure on the President to force him to appoint one. If this were not sufficient, the AG can be impeached. Now, this might not seem sufficient, since nothing has happened in the present case. I would remind everyone, however, that political pressure was sufficient to force Gonzales's resignation.

The main problem to consider, however, is how a different system would work. Some countries have the prosecutorial function assigned to a wholly separate group, with an independence similar to that we assign to judges. This is not a terrible idea, but I think in practice there could be problems. Namely, making prosecutors accountable to the public by making them accountable to elected representatives ensures that prosecutorial discretion is exercised in a way that is beneficial and acceptable to the public at large. The power to prosecute is an awesome one, that should not be used lightly. Forcing political accountability is a good way to keep this in check. Furthermore, this system does not really stop the problem of having one person responsible for the decision to prosecute.

The other option would be to allow individuals to bring private criminal actions. I think some countries do this, but it seems like a terrible, terrible idea to me. Submitting the use of prosecutorial power to the people as a whole keeps in it check, allowing it to be exercised by a single individual is precisely the opposite. An individual, who sees nothing but the injustice in his or her individual case, has no incentive to exercise his power responsibly. By institutionalizing the use of criminal prosecution in a professional class of disinterested prosecutors, we ensure that this important power is exercised responsibly. The power to prosecute is one which has the potential to be genuinely quite awful if abused. The current system might err on the side of occasionally allowing government officials or well connected individuals to escape prosecution, but it seems a lot better to err on the side of forcing fewer, rather than more people to endure prosecution.
posted by Bulgaroktonos at 3:42 PM on February 8, 2008


Two simple words: special prosecutor.
posted by [expletive deleted] at 3:54 PM on February 8, 2008


Purely hypothetical question: If a Congress were faced with a rogue DoJ that refused to enforce contempt citations and such, could that Congress direct the Capitol Police to do that job? (Assuming the citees were within the DC jurisdiction.) I've often wondered this and don't know enough about the various charters of the police bodies to form an answer.
posted by forrest at 5:24 PM on February 8, 2008


Why aren't people shouting this from the rooftops? Why aren't people marching on the White House with flaming torches?

It seems like all the explanations put forth above are basically "Americans are stupid, uninformed and short-sighted."

WTF, America?!
posted by lupus_yonderboy at 6:05 PM on February 8, 2008


The USA is being run by a criminal organization.
posted by five fresh fish at 6:37 PM on February 8, 2008


The USA is being run by a criminal organization.

You are correct. As are most powerful nations. At least for some portion of their political histories. But lately we are the most egregious and shameless criminals. We have all but dropped the pretense. And the republicans scramble to cling to that tiny fragile paper thin pretense like drowning rats.
posted by tkchrist at 8:30 PM on February 8, 2008


I kept thinking about what I what I said. The more I thought about, the more correct it seemed to be. Not nearly off-the-cuff as I'd first thought.

I feel the same about the US admin as I used to feel (and, since Putin came into power, again feel) about the Soviet Union.

How depressing. There was a brief period when it seemed things were looking up: the old Russian government was collapsing, the US government was doing more good things than bad, the world was beginning to think about problems that require international solutions, etc. But, no, Russia was taken over by its mafia and the US government went down the crapper.

Bah.
posted by five fresh fish at 8:47 PM on February 8, 2008




Why It Was Called "Water Torture".(via today's Washington Post)
posted by Benny Andajetz at 1:43 PM on February 10, 2008






I was a little surprised the other day to read that the USA was finally going to execute a few of the terrorists.

I mean, it's only been seven freaking years that they've been incarcerated, interrogated, and tortured. How the fuck can it possibly take that long to determine their guilt?

But as a means to drop a big fresh shit into the next President's lap? That does explain it pretty damn well.
posted by five fresh fish at 6:22 PM on February 11, 2008


Psychological torture: a CIA history
posted by homunculus at 7:13 PM on February 11, 2008


forrest: yes, Congress has its own "inherent contempt" power, which you can read about in section III.C.1 of the Congressional Research Service's Congressional Oversight Manual. It would be enforced by the Sergeant-at-Arms and the Capitol Police.

The Senate has the additional ability to apply to the federal district court to order a witness to comply with its subpoena, and if the witness refuses the court can summarily apply sanctions - but this has never been used against an executive branch official.
posted by nicwolff at 2:35 PM on February 12, 2008






Telecom immunity for domestic spying dies on House floor (via)
Pushed by the White House, last year Congress passed legislation temporarily authorizing warrentless wiretaps.

That authorization expires at the end of the day on Friday, and the White House has demanded Congress make it permanent and grant telecommunications firms which helped the NSA wiretaps retroactive and forward immunity.

While the Senate voted to make it permanent Tuesday, House Democrats are opposed to a provision for blanket immunity to telecommunication firms facing lawsuits for cooperating in the wiretapping program.

The House failed to agree Wednesday to make another temporary extension to the law to continue to seek a compromise.

On Thursday, Democrats ramped up their defiance as the House voted to hold two Bush confidants in contempt for ignoring subpoenas to testify to a committee about a scandal regarding the firing of prosecutors in 2006.

...

The House voted 223-32 to hold White House chief of staff Joshua Bolten and former Bush counselor Harriet Miers in contempt of Congress, a move quickly denounced by the administration as a waste of time.

"The Justice Department will not ask the United States Attorney to follow through on the contempt charges," White House spokeswoman Dana Perino warned even before the vote.
posted by LordSludge at 6:39 AM on February 15, 2008


Gee, it looks almost like half of a legislature!
posted by Kirth Gerson at 7:32 AM on February 15, 2008




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