AG Claims Clear Evidence of Legal Liability Does Not Constitute a Basis for Investigation

In two striking exchanges yesterday, Sheldon Whitehouse tried to get AG Mukasey to explain why DOJ was not conducting an investigation into the activities portrayed on the torture tapes. Whitehouse wondered whether DOJ had refrained from investigating the underlying conduct because those who engaged in the torture had authorization to use it. That amounts to the Nuremberg Defense, Whitehouse insisted correctly. In response, Mukasey suggested there simply was no reason to do an investigation. DOJ had never seen any facts, Mukasey claimed, that would warrant an investigation.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation.

But that’s not true, of course. We know DOJ received the results of the IG’s report on the CIA’s interrogation techniques.

OIG notified DOJ and other relevant oversight authorities of the review’s findings.

And we know that that report stated that the conduct depicted on the tapes amounted to cruel and inhuman treatment.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

[snip]

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

This is a report from the CIA itself, asserting that the interrogation methods depicted on the tapes may well violate an international agreement to which the US is party. The report explains that those who conducted the torture may well face legal liability.

But the Attorney General claims DOJ has never received any facts that warrant an investigation.

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95 replies
  1. TexBetsy says:

    AG Claims Clear Evidence of Legal Liability Does Not Constitute a Basis for Investigation

    your title is the textbook definition of POLITICAL TOOL.

    Thanks for the post EW.

  2. Leen says:

    When Mukasey made light of Whitehouse’s request for a private meeting to discuss what Mukasey defined as the “if’s” having to do with the “concrete facts and circumstances” in regard to the use of “enhanced interrogation techniques”

    Whitehouse responded with the “if’s may not be “if’s” in a private session.

    Mukasey was so dismissive of Whitehouse’s request for a private meeting.

    Whitehouse took a hammering on C-Span’s Washington Journal this morning. The screener let 4 phone calls who hammered Whitehouse for “airing the U.S.’s dirty laundry on air for our enemies to see”. One call from a woman who was in support of congresssional oversight got through at the end of the half hour. ( I had been hammering the screener on line) I think the screener was obviously lop-sided

    • apishapa says:

      Washington Journal generally allows about three Republican calls to every democrat. They go Republican, Republican, Independent (probably republican), Republican, Democrat.

  3. merkwurdiglieber says:

    You could teach a two semester civics course with the video of that
    hearing, but, especially Whitehouse going directly to point wrt
    Nuremberg defense… but Mukasey took the gambit, waltzed right through
    it like it was silly. So they do get to have their own facts as well.

    • BlueStateRedHead says:

      A historical note that makes it all more depressing.

      I am getting my mind around the fact that the discussion of the Nuremberg defense between Sen. Whitehouse and AG_the_Muck-asey took place on the 75th anniversary of Hilter’s rise to power.

      n.b. It should be clear that this is not meant to equate the Bush admin. or the Iraq war with the entire Nazi project.

      • merkwurdiglieber says:

        The Nuremberg Warcrimes Trials were highly significant in American
        history curriculae in the post WWII era, especially since the Nazi
        genocide project justified them alone if there had been no war. But
        now they are barely remembered or taught except to JAG lawyers. Too
        bad, we actually were capable of getting that right back in the day.
        The Vietnam War corrupted this culture so completely, I wonder if we
        could ever get it right again.

  4. FormerFed says:

    Nothing is going to change until the Bushies are gone. Heaven help us if McCain should win, because there will just be more coverup under another Repug administration.

      • merkwurdiglieber says:

        Exactly what Clinton did… shut down investigations to cut NAFTA and
        the rest of his DLC contract on America.

      • manys says:

        It’s not that the Dems would cover up for the current administration, it’s that power will cover up for itself.

      • earlofhuntingdon says:

        My fear, too. The current crop of Democratic “leaders” is as frightened of power as wielding it. The president may have been breaking the law since he stepped into the White House. But if the Dems investigate and prosecute, it will likely reveal their support for much of it.

        Even more threatening is setting a precedent of follow-on investigations of a prior regime that could be corrupted by the next Karl Rove. Imagine if George not had 9/11, but chose instead to build division and fear by hyping a Rovian version of a Truth and Reconciliation [sic] Commission, purportedly to expose and punish the “criminal excesses” of Bill and Hillary.

        That fear may be reasonable – it is a rational response to the brutal, criminal, most un-bipartisan behavior of the current regime and its GOP – but yielding to it would be exactly the wrong thing to do. The Bushistas win without a fight, even better than coercing a legislated immunity or executive pardon, and geld their opposition in the bargain.

        The GOP’s problem with geldings, or steers, is not that they are complacent – that’s their nature – but that they don’t naturally reproduce. So the GOP has to keep making more of them each cycle. Who’s next in the pen after Mr. Lieberman? Nancy or Harry?

      • earlofhuntingdon says:

        Despite Mr. Mukasey’s reasonable fear of looking behind him, prosecutors are always investigating whether past behavior was criminal. Until there’s a Pre-Crime Unit, it’s what they do.

        As was brought out briefly during his testimony, I think by Whitehouse, Mukasey is unable to distinguish between being the Bush family consiglieri and the people’s chief law enforcement officer. The Fredo Fault. Mukasey may feel that’s like choosing between taking a hammer in the face and eating a bowl of ice cream. It’s really the difference between being a mobster and a cop.

    • Leen says:

      And with Lieberman hanging over McCains shoulder at every turn and every event the message is clear “bomb bomb bomb bomb Iran”

      The person who asked the question about Iran “when do we send an air mail message to Tehran”. “ha Ha” the audience responds with laughter. And we wonder why they hate us. Watch this video clip. Sick sick sick

      http://www.youtube.com/watch?v=hAzBxFaio1I

      The Kyl Lieberman amendment is in place for the regime change agenda to move forward thanks to Hillary’s vote and Obama’s fence sitting.

    • Xenos says:

      Nothing is going to change until the Bushies are gone. Heaven help us if McCain should win, because there will just be more coverup under another Repug administration.

      Not to exercise pointless wishful thinking, but can we be confident that will be the case. It strikes me that the source of the extreme hostility of the Bushites to a McCain nomination is the fear that he might hang them out to dry. Romney does not cause that fear, because he is completely with the program for corporatist/authoritarian rule.

      If I could bear to read the last few months worth of Powerline.com I suppose I could test that theory, but I am not up to such a task.

  5. radiofreewill says:

    Whitehouse asked Mukasey – point blank on the question of ‘authority’ – Are you serving the Rule of Law or the Unitary Executive? Why aren’t you investigating the Possible/Probable Crimes shown on the Torture Tapes?

    To which Mukasey gave the Orwellian non-answer, “We investigate when facts are brought to the attention of the Department.”

    A Star is born! Mukasey is the first Newspeak Attorney General.

  6. Neil says:

    Watching Mukasey was a painful experience. . . .The Senate Judiciary Committee put Michael Mukasey to the test yesterday. And he left the hearing room as an embarrassment to those who have known and worked with him over the last twenty years, and who mistakenly touted his independence and commitment to do the right thing, come what may. […]

    But let’s get to what Mukasey really means when he says “reasonable minds can differ.” It sounds civil and amiable. But it’s just the opposite. What he’s saying is that the White House and he will decide what the law is, and they’ll act according to their secret understandings. But he’s not going to be held accountable on any of this to Congress. He treats Congress as if they were spectators, not legislators. He forgets that they have a charge to keep under the Constitution. They make the law, or so they think. But they also have oversight over the conduct of the Executive Branch. The essence of Mukasey’s response is therefore quite simple—the President determines and enforces the law; the President makes the law. Congress may not like this, but that hardly matters because Congress has been emasculated

    ‘Reasonable Minds Can Differ’ BY Scott Horton link

    • merkwurdiglieber says:

      Schumer’s face actually flushed when he ended a question session with
      his pal Lieberman’s law school roommate. Someone should have asked the
      AG if he considered himself operating under EO 12656 as amended by who
      knows how many secret EO amendments wrt National Security Emergency
      Continuity Of Government provisions suspending the Constitution for
      a truly unitary executive governing apparatus… apparatchik?

    • cboldt says:

      That’s very well done prose and summary analysis by Scott Horton. Thanks for posting it and the link.

  7. merkwurdiglieber says:

    McCain inspire no such confidence in me, too much baggage from the
    Vietnam War, way egotistical and unstable, a Junya that went to war
    but otherwise, no different.

  8. apishapa says:

    In watching the hearings, I am struck that Mukassey reminds me of George Bush in that he demonstrates no conscience at all. Whatever suits his agenda must be okay. Also, GWB is very incurious. Mukassey also seems to have no interest in learning anything that might interfere with his precovceived notions of what did or will happen. A prosecutor who has no interest in lawbreaking that might have taken place? Give me a break.

    All I heard was how smart and principled this man. What a joke he played on our esteemed clueless Senators. Smart maybe, but he has as much integrity as AGAG.

    • Hugh says:

      All I heard was how smart and principled this man. What a joke he played on our esteemed clueless Senators. Smart maybe, but he has as much integrity as AGAG.

      They did the same thing with Roberts, or come to think of it, Abu himself. They can see miles away that the candidate is bad news. (See my Mukasey Principle) But even knowing this, they still confirm and then express shock, shock I tell you, that the candidate acts like another typical Bushite apologist for any and every harebrained and criminal scheme of the Bush/Cheney Administration.

  9. CasualObserver says:

    I remain puzzled as to why congress confirmed Mukasey. They knew damn well what would happen. Come to think of it, why did they pass the MCA? Why have they passed all these hateful, evil, unamerican bills, with Democratic support?

    I feel that these hearings have little or no beneficial effect if no senate action stems from them.

    • merkwurdiglieber says:

      They remind us of what we have lost and shapes of things to come…
      plus they give the administration some comic relief at our expense.

      • CasualObserver says:

        We have lost it, yes. But it is they, the Congress and particularly the Senate, who literally let it slip away through their fingers. And they continue to do that right to this day. Instead of cheering on the SJC, who ask questions and then sit on their hands and do nothing, we should be holding a wake for our dead legislature, who have taken the constitution down into the grave them.

        • merkwurdiglieber says:

          You have it right, they, most of them, have violated their oath of office
          in not preserving, protecting and defending the Constitution… the
          modern view is of senators as assistants to the president, nothing more.
          If we make too much noise about it there is a detention program waiting
          in the wings for the next act.

    • earlofhuntingdon says:

      I feel that these hearings have little or no beneficial effect if no senate action stems from them.

      I think that from Cheney’s perspective, no legislative response in the face of these admissions and evasions is a good thing. He can later tell any would be special prosecutor or court that “Congress was fully informed or had an opportunity to inquire. They did nothing about it and therefore acquiesced in what they knew – or could have found out with reasonable inquiry – about our behavior. We ain’t liable for nothin’.”

      • CasualObserver says:

        For sure good for Cheney. I don’t think it would ever hold up in court, but Cheney’s certifiably crazy and might do anything. Those lawyers in the “4th branch” are highly unpredictable.

  10. Hugh says:

    It is a classic Catch-22. Mukasey will only investigate if he has evidence of a crime, but he can have no evidence of a crime unless he investigates. Catch-22 is a famous but true principle.

    I wish to suggest another. I call it the Mukasey Principle. This says that no one with a shred of integrity would even think of being part of the Bush Administration. So anyone working for the Bush Administration should be expected to act accordingly. This has proven true not only of Mukasey but every other member of this Administration I can think of.

      • Hugh says:

        So where do Schumer and Feinstein line up by voting for Mukasey?

        As enablers and facilitators, like Harry Reid and too many others in the Democratic Party including Clinton and Obama, of the Bush criminal enterprise.

            • CasualObserver says:

              That is not my understanding. Biden, Clinton, Dodd and Obama did not vote. A half dozen Democratic Senators voted to confirm. No Republican Senators voted against Mukasey. The confirmation of Mukasey was a successful example of bipartisanship.

              • bobschacht says:

                That is not my understanding. Biden, Clinton, Dodd and Obama did not vote. A half dozen Democratic Senators voted to confirm. No Republican Senators voted against Mukasey. The confirmation of Mukasey was a successful example of bipartisanship.

                You are right that all 4 did not vote on the confirmation of Mukasey. They are recorded as “not voting.” I take it you are using the word “bipartisanship” with an eye on Glenn Greenwald’s diary yesterday.

                Bob in HI

          • Hugh says:

            Did Clinton and Obama vote for Mukassey?

            You know that is a very interesting question. My original point was that many Democrats in the Congress have facilitated the excesses of this Administration. For example, Clinton voted for th AUMF against Iraq and then supported the war for more than 3 years. And both she and Obama voted to approve the extension of the Patriot Act.

            But with regard to Mukasey, we all know how Schumer and Feinstein voted in committee, a vote which allowed the nomination to proceed to the floor where confirmation was certain and any vote in opposition was purely cosmetic.

            Yet beyond this, did Clinton or Obama raise any particular objection? Did they try to jawbone either Schumer or Feinstein? Did they threaten a filibuster? They did not, just as they have never mounted a meaningful opposition to the Iraq war or the Protect America Act.

  11. Leen says:

    That exchange between Mukassey and Whitehouse on the definition of “if” there are “concrete facts and circumstances” in regard to the “enhanaced techniques” really hung with me.

    When Whitehouse said the “if may not be If’s” in a private meeting seemed critically important.

  12. Fractal says:

    cboldt, I sent faxes to Clinton, Obama, most of the Blue Dogs (excluding Arkansas & Louisiana) and the progressive core Senators supporting Dodd & Feingold, thanking them all for voting against cloture on Monday. I asked them to defend the fourth amendment and continue fighting against amnesty, bulk collection, data mining.
    (I tried to send a thank you note to Specter, but his fax never answers anymore.)

    I managed to squeeze in that Mukasey appeared to admit (at least, failed to deny) that Specter was correct that the Prez violated the FISA statute. Mukasey did explicitly testify under oath that the Prez has no Article II power under the constitution to violate a statute. I know you don’t particularly want to deal directly with the Senators, but we need to figure out a way to use Mukasey’s admissions to move the Blue Dogs into supporting Dodd & Feingold.

    • cboldt says:

      I know you don’t particularly want to deal directly with the Senators, but we need to figure out a way to use Mukasey’s admissions to move the Blue Dogs into supporting Dodd & Feingold.

      I still deal with my Senators, as well as their opponents. I’m not shy about being involved, I’m just cynical about whether or not my voice makes any difference. I’m an annoying gnat to my elitist betters, at least that’s how THEY see it. I’m quick to praise them too.

      At any rate, the key on the retroactive immunity part of FISA is to get them to reject the good faith defense. Mukasey’s admissions don’t help. The senators who buy the SSCI Title II deal think it’s fair, and don’t think it hurts Senate or Congressional credibility.

      I think the most persuasive argument is to hit them on institutional credibility, and it just happens, when the institution is Congress, institutional credibility is essentially congruent with the rule of law.

      • Fractal says:

        The senators who buy the SSCI Title II deal think it’s fair, and don’t think it hurts Senate or Congressional credibility.

        I discovered something unexpected about the membership of the SSCI: three of the Dems are also on the SJC (Feinstein, Feingold & Whitehouse). So we may have made a strategic error in thinking we could get Judiciary Committee members to attack the Intelligence Committee product. Three of them are on both committees!

        • cboldt says:

          we may have made a strategic error in thinking we could get Judiciary Committee members to attack the Intelligence Committee product.

          The SSCI immunity deal is a tough target. It looks okay superficially, and digging into it causes eyes to glaze over. Is there enough smoke in the statutory language to provide adequate electoral cover? I think so.

        • emptywheel says:

          That’s by design–there is supposed to be significant overlap there.

          But that doesn’t matter in this case: Feingold and Whitehouse are two of the leaders on this, and DiFi, at least, has pushed for her own compromise on immunity. Feingold and Whitehouse, at least, knew they would work to alter the SSCI bill in SJC, and Whitehouse said he voted for the SSCI bill intending full well to change it.

          • Fractal says:

            thanks, EW! What do we need to do to persuade those two to support deleting retro. immunity from the SSCI version?

            • emptywheel says:

              Not gonna happen, not least bc Jello Jay is the Chair in SSCI. Also, SSCI has a tradition of being bipartisan, so there’s less ability to harp on immunity (which is why you keep hearing about how great bipartisanship is). Plus, in SSCI you don’t have Specter, which gives you a possible cross-over in SJC (though you might one day be able to persuade Hagel, I guess).

              No, it’ll need to come out as an amendment.

  13. cboldt says:

    Mukasey Confirmation Roll Call Vote – 53-40, he could have been stopped with a filibuster. This is one of the narrowest AG confirmation votes ever. Ashcroft and Gonzales were close too. IIRC, those three are the three closest ever in history.

    AG Nomination – Confirmation NAY Votes
    * John Ashcroft – 42 (16 vote margin)
    * Michael Mukasey – 40 (13 vote margin – WINNER!)
    * Alberto Gonzales – 36 (24 vote margin)

  14. BayStateLibrul says:

    Mukassey’s Weasly Letter

    I went back and read his letter to the Judiciary Committee.
    “These circumstances do not present temselves today, and may never
    present themselves in the future”

    What about the past?
    He FUCKING ignores the past.

    Based on his analysis, someone needs to either impeach, or
    instigate a class-action suit against Bush, Cheney, et.al…

  15. Fractal says:

    Over at the Lake, Steve-AR found a good posting on TPM. Check it out:

    http://www.tpmmuckraker.com/archives/005183.php

    I forgot how to use my html tags to embed the headline in the link, but TPM has a source that leaked part of Reid’s letter to McConnell rejecting McConnell’s attempt to block any vote on the Dodd amendment stripping retroactive immunity from the FISA bill. Here’s what Reid said:

    “In a letter to McConnell late yesterday, portions of which the source provided, Reid wrote McConnell, ‘That amendment – which Sen. Dodd has been talking about for months – goes to the heart of the FISA debate. It is ludicrous to think he should not be allowed to offer that amendment.’ “

    • cboldt says:

      TPM has a source that leaked part of Reid’s letter to McConnell rejecting McConnell’s attempt to block any vote on the Dodd amendment stripping retroactive immunity from the FISA bill.

      I really don’t understand the GOP tactic with that sort of behind the scenes rejection. The Dodd/Feingold amendment would be defeated in an open vote. Why not kill it there?

      It’s a very hardball tactic, and my initial impression is that it is a serious overreach of position, considering the downside risk (debating the amendment) is negligible.

      Last year, Frist tried to tie estate tax, tax extenders and something else together. I said at the time it was stupid tactics, because the majority of the Senate would give (and the GOP would benefit) from passing tax extenders. The tax extenders came into being later, after Frist was gone.

      Anyway, thanks for that link & speculation. I have some speculation at my joint too, but I figured the dickering was more over 60 vote margins in the back room, which would obscure that the source of delay on this bill is immunity proponents, not immunity opponents.

  16. oldtree says:

    He has apparently just indicated he is willing to investigate the CIA, but that there is no chance he will investigate the crimes in his own unit. How long can we go on playing along with the national joke here?

  17. cboldt says:

    November 8, 2007 at 23:25: Judge Mukasey was CONFIRMED as Attorney General on a 53-40 vote.
    DEM Aye votes: Bayh, Carper, Feinstein, Landrieu, Lieberman, Nelson (NE), Schumer
    Not Voting: Alexandr, Biden, Clinton, Cornyn, Dodd, McCain, Obama

  18. Fractal says:

    I have dropped Landrieu from my faxing list, and I never thought there was any point in sending faxes to Lieberman or Schumer or Feinstein. But your reminder that Bayh, Carper and Nelson (NE) also voted for Mukasey really does make the hill steeper for defeating retroactive immunity. I’m inferring that the votes for Mukasey equal rubber-stamping for the White House.

    OTOH, all seven of the Dems who voted for Mukasey voted against cloture on FISA on Monday (except Landrieu). So, I’m getting lost in the weeds.

    • cboldt says:

      … make the hill steeper for defeating retroactive immunity.

      I have a hard time finding 51 votes for Feingold’s amendment, especially when the menu includes Specter/Whitehouse and SSCI “faux substitute” options.

      But if McConnell is afraid of a straight vote, he can arrange a cloture vote on that amendment, and defeat it that way, or defeat it by tabling, just like the SJC amendment went away. Losing a vote to table, FWIW, is not a vote to pass. He can LOST a table motion, and then object to voting to pass – which either forces the amendment out of the way to die (as “not passed”), or forces a cloture motion. Usually, on a lost cloture motion, the amendment proponent will withdraw the amendment (although they have NO obligation to do so).

      • bigbrother says:

        Can we run out the clock on the August 2007 version of the FISA update and remand back to the original FISA that process that Grenwald nicely describes in his recent posts?

        • cboldt says:

          Can we run out the clock on the August 2007 version of the FISA update and remand back to the original FISA that process that Grenwald nicely describes in his recent posts?

          60 Senators have the power to ram legislation over all objections. There’s still the House, of course, and presidential veto.

          But if there are fewer than 60 ready to cram the SSCI bill through, and the 41+ are willing to take whatever heat attaches to reversion to pre-PAA FISA, sure. Not only CAN it revert, it WILL revert.

  19. earlofhuntingdon says:

    “Reasonable minds can disagree.” I think that’s what Mack the Knife thought when that blood was “oozin’ round”. Scott Horton and Glenn Greenwald also do a great job tearing apart Mukasey’s “reaonableness”, the Gemuetlichkeit of his new-found role. (German seems to be the only language that adequately captures this administration’s legal contortions.) Here’s a money quote from Glenn:

    The essence of Mukasey’s response is therefore quite simple—the President determines and enforces the law; the President makes the law. Congress may not like this, but that hardly matters because Congress has been emasculated.

    I’m not so much interested in the reasonableness argument itself; after all, if you include Mack the Knife or a billionaire in any group, you radicalize its behavioral center. I’m interested in the meme. As with much of Cheney’s current work, it’s about not getting caught, and about creating a safe haven for the next GOP administration (though a Democrat who’s with the program would be welcome).

    If behavior is reasonable, or if reasonable minds can differ, then doing it might lack the criminal intent for it to be a crime. Alternately, if criminal, that reasonableness could mean a minimum rather than maximum sentence. It could also mean reasonable doubt, and a walk away with no ability to be retried for the same offense. Sounds reasonable to me. Not.

    So why were Democratic Senators content to whine and be disappointed and not demand something different. They’re playing Bush’s waiting game, too. Like the Chinese nail that sticks up, they are more afraid than Bush of being hammered down.

    • bobschacht says:

      “Congress may not like this, but that hardly matters because Congress has been emasculated.”

      They have emasculated themselves by refusing to use the Constitutional tools provided for their defense. The Democratic leadership is pathetic.

      Bob in HI

      • earlofhuntingdon says:

        Agreed. For the record, that paragraph’s quotation marks were lost in posting; it’s a quote from Glenn Greenwald.

      • earlofhuntingdon says:

        In this administration, raped employees, people mistaken for enemy combatants and tortured, and whistleblowers attempting to disclose crimes and government waste can’t get their day in court. Odds are not good that a future prosecutor will get their hands on Dick and George long enough to tell a jury about their misdeeds.

  20. earlofhuntingdon says:

    So why were Democratic Senators content to whine and be disappointed and not demand something different. They’re playing Bush’s waiting game, too. Like the Chinese nail that sticks up, they are more afraid than Bush of being hammered down.

    Rove and Cheney were right. The politics of fear are the most effective way to grab and hold power and corruptly wield it for the benefit of a few, especially when stealing it from the many via the empty suit of a man called George.

  21. noen says:

    Has anyone seen the comments by “Anonymous” on TMPmuckraker about this? He had some very powerful things to say and I think this is the same anonymous that posted comment during the Gonzales hearings.

    Whitehouse to Mukasey: Why Not Investigate Torture?

    Anonymous

    I find the DoJ AG response troubling for several reasons. One of them TPMM cited: The Nuremberg defense.

    Second, the AG appers to have a conflict: As a Judge, he appears to have had a requirement to have reviewed whether the FISA-captured information was used as a pretext for this abuse.

    Third, the AG appears focused, as does Congress on the irrelevant issue of “torture”: Geneva prohibits _abuse_: whether waterboarding is or is’t “torture” is the wrong track. Self-evidently, waterboarding is abuse.

    Fourth, going back to Nuremberg, civilian policy makers were prosecuted for war crimes, and judges were indicted at the Justice Trial. AG’s responses today suggest that a war crimes investigaiton needs to be opened.

    Fifth, the purpose of having prosecutors is to enforce the law under the Exeuctive Branch. When the Executive Branch will not enforce the law, the Framers intended the legilsature — through impeachment — to have a tool to remove agents the President refused to remove.

    I would ask that the State Attorney GEnerals be immediately contacted for purposes of drafting indictments against the AG and Members of Congress for their joint decision to not enforce Geneva. If the State AGs are not going to do this, then we need to broaden the list of prosecutions/indictments to include the State AGs over alleged breaches of their oath of office, and their decision to “not protect” the Constitution against domestic enemies.

    There is a good deal more. I hope people will read what he/she has to say. I think that our next step is to do what he recommends, contact our State AGs and ask them to drafting letters of indictment on Mukasey and Congress. It is our only remedy.

    Congress has the power to investigate, why aren’t they? They have no need to go on bended knee to the White House. They have full constitutional powers to investigate. They refuse, therefore they are in violation of their oath of office and should be removed forthwith.

  22. pdaly says:

    At the end of that video clip, Mukasey launches into the old ‘we are not going to second guess the president; we are going to support our troops’ mantra–although in this case Mukasey’s troops are CIA personnel and supporting the troops means looking the other way if (or to paraphrase Sen. Whitehouse slightly, not if but “when”) the CIA tortures captives.

    Mukasey is telling us he, too, wants to hide behind the Nuremberg defense:
    “It should not turn on one person’s current view of what that statute requires or doesn’t require”…

    It this case I believe Mukasey is referring to himself (”current view”).
    What Mukasey conveniently ignores is that the torture occurred in the past because one person (i.e., Bush, albeit Cheney in reality) created his own reality out of step with all law and international treaties, and his people followed their leader.

  23. apishapa says:

    If I remember correctly Mukassey foo0led a lot of people, not just our gulible Senators. I remember reading several blogs that seemed to endorse his nomination because he made one good ruling as a judge against torture.

    He seemed to be the “best” we could hope for. And he probably was not as bad as Democrats had expected. If I remember right, Bush floated some truly evil names as repalcements for AGAG in order to trick us into accepting the least evil.Like Ted Olsen, Chertoff, etc. Mukassey sucks, but many thought he was better than the possible alternatives. We all knew he would be another Gonzales, no one was going to be nominated by Bush who had not sworn fealty to Bush.

    • Hugh says:

      If I remember correctly Mukassey foo0led a lot of people, not just our gulible Senators. I remember reading several blogs that seemed to endorse his nomination because he made one good ruling as a judge against torture.

      I think there was an initial openness to the Mukasey nomination but as more information came out about him and certainly with his Senate testimony in his confirmation hearings, it became clear he was going to be a Bush stooge and apologist. (See my Mukasey Principle)

  24. cboldt says:

    On the subject of objecting to taking up the Dodd/Feingold amendment, there is a certain legitimate justification. Once taken up, and amendment HAS to be disposed of before other amendments can come in.

    There’s a procedural way around anticipation of a refusal to agree to set aside, and that is to make this amendment LAST. Then, even if Dodd/Feingold object to setting it aside, say after a motion to table is rejected and the amendment is nominally alive (slim to none chance), the Senate can kill the amendment by passing cloture to vote on the underlying bill, and passing the underlying bill without the Dodd/Feingold amendment having been finally dealt with.

    • Fractal says:

      There’s a procedural way around anticipation of a refusal to agree to set aside

      Don’t give McConnell any ideas! Keep repeating Reid’s line as a mantra: refusal to allow a vote on Dodd’s amendment would be ludicrous . . . ludicrous . . . ludicrous

      • cboldt says:

        Keep repeating Reid’s line as a mantra: refusal to allow a vote on Dodd’s amendment would be ludicrous . . . ludicrous . . . ludicrous

        Actually, it IS ludicrous. Especially since, AFAIK, neither Dodd nor Feingold would pull some procedural stunt to keep the bill for going forward (other than insisting on cloture for the final bill, which all sides accept as inevitable) if their amendment is beaten after being debated and voted on. The amendment can be beaten with a motion to table, or an up or down vote, or by failing to obtain cloture, if McConnell thinks 51 Senators stand ready to out and out strip immunity.

  25. Sedgequill says:

    It wouldn’t be a case of implying that the only credible evidence would be recordings of interrogation sessions, would it? Unless records of who conducted the sessions have been disappeared, those personnel could be questioned by duly authorized investigators; those who have participatory or command-level knowledge of interrogation sessions might also have some knowledge of the recordings, however, which could prove inconvenient for those who prefer that waterboarding and other “enhanced” interrogation methods go unexamined.

    • emptywheel says:

      Well, except that we know the IG report reviewed the torture tapes–it’s probably the most accurate depiction of what those tapes show, if they have indeed been destroyed.

  26. cboldt says:

    McConnell is running the clock in the back room so he can blame the other side for being unreasonable. He also gains power if negotiations bump into an impending deadline, which has political/procedural advantages that we witnessed last August, December, and last week.

  27. Fractal says:

    don’t mean to drag out this thread, I was just stuck on a long phone call. I’ll just go upstairs . . . .

  28. TheraP says:

    “We investigate when facts are brought to the attention of the Department.”

    “attention of the Department”

    So, who in the Dept or how does one bring the attention and attention of what type?

    I think you have to nail these folks on every word and every process!

    • maryo2 says:

      Absolutely. I noticed yesterday that Republican Senators are using the phrase “the Government” to lump the Congress together with Bush Cronies. During the FISA conversations, they kept saying “the Government” requested the phone records of US citizens.

      I think the phrasing and lumping-together is intentional and deliberate. (To mislead the public and to protect Bush cronies as well as GOP enablers.)

  29. Mary says:

    Jack Balkin, via Scott Horton:

    Here’s Yale Law Professor Jack Balkin’s summation of the Mukasey testimony:

    You’re crazy if you think I’m going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal. Saying that would suggest that people in the Administration violated the law and are subject to criminal prosecution, and that previous OLC opinions have condoned war crimes. The only thing I will tell you is that I sure hope we don’t continue one of these practices in the future (lucky for me you haven’t pressed me about the others!). But don’t ask me to say that the President can’t do any of them later on if he wants to. I mean, come on, guys, I just got here, you know? I just put new drapes in my office. I really don’t want to have to get fired only three months after I started. Oh, and by the way, the President, my boss, never violates the law. Got that?

    http://harpers.org/archive/2008/01/hbc-90002285

  30. Mary says:

    I think Mukasey’s nomination had very little to do with people expecting a lot from him – Bush wasn’t going to nominate anyone from whom much could be expected – but rahter the alternative to not approving him.

    Keisler, as I recall. With Keisler you can bet that you would not have received even the minimal re-establishment of brakes and controls on WH contact with the AG’s office. So in the Mukasey v. Keisler choice, I think they were probably better with Mukasy, although it has been just flat out sad to watch him fade into nothing more than a petty mouthpiece for a criminal, advocating for torture and for the continued use of the Dept of Justice to cover up Executive crimes as their raison d’etre, but only the partisan approved crimes and the inner circle crimes. Watching him create an aristocracy free from the constraints of law – created and kept by their owned prosecutors who deny them nothing, and solicit for them horrors. They’ve really used the Dept of Justice and the Dems in Congress to irrevocably and irretrievably weave torture and disappearing men, women and even young children, into the fabric of what this nation is.

    And we let them.

    http://youtube.com/watch?v=oq8iFiMnWbI

  31. CasualObserver says:

    Completely OT–is there going to be a final trash-talk thread? A venue for pre-Superbowl hot air?

  32. Hugh says:

    Mukasey could have stayed retired and kept his reputation. He didn’t and history that would have ignored him or regulated him to a footnote will tar him along with all the other moral lepers that make up this Administration.

    I reiterate my Mukasey Priniciple. No one with an iota of integrity would work in this Administration. Accepting a position in it is an admission that Mukasey has no integrity. Events such as hisrecent Congressional appearance prove this.

  33. earlofhuntingdon says:

    One nuance I missed in Mukasey’s dialogue with Sen. Kennedy was how he described waterboarding if done to him. He would “feel” like it was torture. That’s not an admission or legal opinion. It’s a personal statement. He was very well prepared, and stayed on Addington’s message points to the letter.

  34. Ionion says:

    “The NBC News analysis shows that more than one quarter of all footnotes in the 9/11 Report refer to CIA interrogations of al-Qaida operatives who were subjected to the now-controversial interrogation techniques. In fact, information derived from the interrogations is central to the Report’s most critical chapters, those on the planning and execution of the attacks. The analysis also shows – and agency and commission staffers concur – there was a separate, second round of interrogations in early 2004, done specifically to answer new questions from the Commission.”

    http://deepbackground.msnbc.ms…..24314.aspx

    Someone may find that relevant………..The Ionion/RodUnderleaf

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