Mukasey’s Troubling Historical Argument

Mukasey’s defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.

But few people have examined Mukasey’s rationale for defending Yoo.

Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and–I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.

To make this argument, Mukasey relies on Jack Goldsmith’s discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one–FISA–was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress … crafting many of the laws that so infuriatingly tied the President’s hands in the post-9/11 world").

That’s important because, rather than attributing this legal timidity to Goldsmith’s more general trend of human rights over the last 60 years, Mukasey picks a few historical events as the source of risk aversion.

Intelligence excesses of the 1960s led to the Church committee reproaches and reforms of the 1970s, which led to complaints that the community had become too risk averse, which led to the aggressive behavior under William Casey in the 1980s that resulted in the Iran-Contra and related scandals, which led to another round of intelligence purges and restrictions in the 1990s that deepened the culture of risk aversion and once again led (both before and after 9/11) to complaints about excessive timidity.

Now before I rip apart the historical logic of this passage, here’s how Goldsmith discusses the effect of those same historical events.

The main problem was the effect that the legalization of warfare and intelligence had on lower-level officials in the Defense Department, the CIA, and the National Security Agency. The White House couldn’t execute its plans to check al Qaeda without the cooperation of the military and intelligence bureaucracy. But these bureaucracies — especially in the intelligence community — had in the 1980s and 1990s become institutionally disinclined to take risks. The Church and Pike investigations of the 1970s and the Iran-Contra scandal in the 1980s taught the intelligence community to worry about what a 1996 Council on Foreign Relations study decried as "retroactive discipline" — the idea that no matter how much political and legal support and intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment.

Note the difference: Goldsmith describes how several historical investigations, taken together, have created concerns within the intelligence community that, however much legal and political support intelligence communities may have when a program is instituted, there’s always risk the individuals implementing the programs will be held legally liable after the fact. Goldsmith is not describing a cyclical process–aggressive program, reform, risk aversion, aggressive program, reform, risk aversion. He’s simply saying those several investigations, together, have taught the intelligence community to insist their activities get bright legal sanction before they do them. This is consistent with the larger argument in his book: because lawyers at CIA and NSA wanted specific legal authorization before they engaged in programs deemed legally risky, the Administration (and John Yoo especially) wrote opinions that were legally suspect but nonetheless functioned as "get-out-of-jail-free cards."

But for Mukasey, there is a causal relation between these events: aggressive programs (COINTELPRO and Iran-Contra) led to an intrusive investigation and subsequent reforms (Church and Iran-Contra investigations), which led to risk aversion, which led to criticism of the intelligence community for its excess timidity, which led to other aggressive programs. This causal relation is utterly central to Mukasey’s defense of Yoo.

No doubt, there is some sense in which this cycle, or something like it, is healthy. The sometimes competing imperatives to protect the nation and to safeguard our civil liberties are undoubtedly worthy of public debate and discussion. And oversight and review of our intelligence activities—by the Congress, within the executive branch, and, where possible, by the public—is important, vitally so.

But it is also important—and equally so—that such scrutiny be conducted responsibly, with appreciation of its institutional implications. In evaluating the work of national security lawyers, political leaders and the public must not forget what was asked of those lawyers six-and-a-half years ago. We cannot afford to invite another “cycle of timidity” in the intelligence community; the stakes are simply too high.

Mukasey accepts (he says) that there may be some value to debating the balance between civil liberties and national security and reviewing events of the past. But if such discussions are conducted irresponsibly, Mukasey argues, it will lead to another "cycle of timidity" and–the suggestion is–potentially another attack.

The implications of this view are disturbing. Mukasey is arguing that, if John Yoo is held responsible for the shitty opinions he wrote, then in the future some OLC hack writing get-out-of-jail-free cards won’t be so rambunctious in his opinions. Me, I consider that a good thing. But Mukasey implies it will lead to another terrorist attack.

The implications of Mukasey’s view get still more disturbing when you assess it as historical fact. I certainly agree that the Church and Pike investigations drastically changed the scope of CIA ops. But that didn’t prevent Jimmy Carter from initiating two of the most important programs behind our winning the Cold War: funding Eastern European and Russian dissident groups, and funding the mujahadeen in Afghanistan. Furthermore, it was not a reaction to the reforms of the 1970s that led to the failures of the 1980s. Rather, it was partly the work of Team B type analysis that distorted intelligence on Russia and the Middle East. It was partly the inability of the CIA and FBI to find the spies (Ames and Hanssen) who were devastating the country’s intelligence ranks. It is historically inaccurate to attribute the William Casey-led ops to general complaints that the intelligence community had become too risk averse. How could it be?!? Casey’s actions were instead an attempt to evade the oversight and limitation of those–you know, like Congress–who wanted the CIA to continue to uphold the standards imposed after Watergate scandals. I have no doubt that some within the Reagan Administration thought those rules were too restrictive and led to timidity, I have no doubt that people within and outside of the Reagan Administration questioned the CIA’s competence. But that does not equate to the kind of generalized consensus–like that of post-9/11 analysis–that the CIA was incompetent because it was too timid.

Moreover, the pre-9/11 timidity was not a response, per se, to Iran-Contra (except in the narrow sense Goldsmith describes of CIA officers realizing they could be held legally liable for operations conceived of and authorized by the President). Rather, the things the intelligence community did not do that might have prevented 9/11 (specifically, to take out bin Laden in the late 1990s and to trace the calls between 9/11 hijackers and a known safe house in Yemen) were reactions to post-Watergate reforms, EO 12333 and FISA, respectively, not post-Iran-Contra reforms.

Mukasey has basically turned Goldsmith’s argument–that Iran-Contra made intelligence officials worried about the legal repercussions of their activities–into an event in which investigators conducted irresponsible oversight which, somehow, contributed to 9/11.

Think about the implications of that for a moment.

Mukasey’s insinuation that the investigation into Iran-Contra was irresponsible has two very dangerous implications. First, it suggests it is improper for Congress to conduct an inquiry into the executive branch after the executive branch ignores a very clear law passed by Congress. Of course, a couple of guys made that argument back in 1987, in the Minority Report on Iran-Contra. Dick Cheney and David Addington argued that the Boland Amendment and the investigation into Iran-Contra were just attempts by Congress to improperly usurp the executive branch’s powers to conduct foreign policy. Mukasey’s inclusion of Iran-Contra in his historical description of the causes behind legal timidity must be read as an endorsement of Cheney and Addington’s famous ideological expansion of the unitary executive (because it’s the only way it makes any historical sense). And with it, Mukasey suggests he believes a Congressional investigation into Bush’s clear violation of both FISA and the Convention against Torture might be irresponsible.

But that wasn’t the only investigation into Iran-Contra, after all. There was also Lawrence Walsh’s investigation, as Independent Prosecutor, into the events. I certainly understand that the unitary executive ideologues believe Independent Prosecutors to be unconstitutional. And at that level, the inclusion of Iran-Contra in Mukasey’s historical description may explain why he has had John Durham–with no independence whatsoever–investigate the torture tape destruction rather than appoint an Independent Prosecutor. But the suggestion that the Walsh investigation was irresponsible is troubling for another reason: the big fall-out at the CIA, after all, was that Duane Clarridge and Clair George were indicted (and then pardoned) for lying to Congress; Clarridge was fired by William Webster and a slew of agents left with him. Is Mukasey suggesting it would be improper to hold John Rizzo or Alberto Gonzales responsible for lying to Congress, which both have been alleged to have done? Does an expectation that Administration officials tell the truth to Congress lead to risk aversion in intelligence operations?

Now, I’m not sure whether Muaksey’s inclusion of Iran-Contra in his description of the causes of risk aversion implies all of these things, up to and including a disinclination to prosecute officials for lying to Congress. But it certainly makes the John Durham investigation–in which Mukasey directly oversees Durham’s investigation into events that may well include lying to the 9/11 Commission and Courts–all the more dubious.

I find Mukasey’s public (though implicit) defense of Yoo to be unfortunate. But I find the logic on which he based that defense to be downright dangerous.

131 replies
  1. GeorgeSimian says:

    Another troubling aspect of this defense is that it’s all backwards logic. They decided what they wanted the law to say and then went about figuring out how they could interpret it that way. It’s not too different from how fanatics interpret the bible by cherry picking a line or two out of context to say that God meant that, for example, homosexuality is a sin. And the worst part about this, in my opinion, is that these excuses are being made up to cover up massive, and probably criminal, incompetence. It’s like Enron, just one lie after the other, justifying their hubristic moves with hubristic reasoning – what we’re doing is legal, but it’s so cutting edge that we need new legal means to do it. It’s duplicitous, which is just another word for lying.

    • emptywheel says:

      Yeah, I didn’t really address the question of efficacy in this piece. But my reference to Carter’s funding of the most successful Cold War ops was implicitly an argument that Mukasey is valuing aggressive programs over effective ones.

  2. ruthhmiller says:

    This is a brilliant analysis. Thank you. I was unaware that Boston College once a bastion of civil liberties despite its Roman Catholic administration, had asked Mukasey to speak at the law school gradutation.
    I hope this does not suggest they are becoming the new mindless relligion law school like the one Monica Goodling attended.

  3. BoxTurtle says:

    The UNTROUBLING aspect of this is that Yoo and his supporters must be feeling the heat. I like that.

    They had to trot out Mukasey to defend him. That had to be painful, Mukasey is a lawyer and has to know that Yoo’s opinions are garbage. He has to know that Yoo was ordered to justify prior actions, rather than come up with a true legal opinion. And now he has to defend that. Anybody think is was his idea? I think he got a call from Cheney’s office!

    Yoo is indefensable. I wonder how long it will be before he leaves his current post for reasons unrelated to the Torture memo, the university has a reputation as a liberal bastion perhaps he’ll make the “Poor, picked on, conservative” argument as he troops off to join the Heritage Institute.

    Boxturtle (Maintain pressure. This means we’re winning)

    • emptywheel says:

      I actually think this was more tactical than a defense of Yoo. Rather, I think it was a really dishonest attempt to discredit Goldsmith–one that Mukasey emphasizes with his description of Goldsmith being right up the river from where he delivered the speech.

      That’s something Yoo does himself in the Esquire piece, basically say Goldsmith isn’t credible because he never finally came up with a torture standard.

      • BoxTurtle says:

        You might be right, but he could have smeared Goldsmith without bringing up Yoo. We might BOTH be right, there might be more than one thing going on in that speech.

        That’s something Yoo does himself in the Esquire piece, basically say Goldsmith isn’t credible because he never finally came up with a torture standard.

        It’s really tough to come up with a standard when your marching orders (Figure out a way) don’t match with the constitution or international law.

        Boxturtle (A truly excellent bit of research, btw. And well written)

  4. PJEvans says:

    I thought it was interesting that Mukasey was talking this last week about how the lawyers shouldn’t be held liable for their actions and opinions since 9/11 (especially the torture stuff).
    Can we say protecting his own rear end?

  5. Rayne says:

    OT — from way back in the bowels of BAE for EW:

    You could be right, I may be looking at this backwards — or I’m looking at this as an IT person. If I wanted to tap the conversations of Americans in order to mine their communications for trends by way of meta-data and then for specifics within the data, I’d go to the telecoms, not equipment/database providers.

    And I’d ask for access, and I’d ask them to install equipment. I wouldn’t go to an equipment/database provider. To be more clear, I’m wondering if the telecoms aren’t reacting as we might expect them to because they believe they have found a way to mitigate their exposure, either because they have info they can use to offset their position, or they have other resources they can bring to bear, like non-traditional lobbying outside of required reporting.

    Or they already know that they’ve only granted access, and that the real bugbear is in the equipment/database vendors’ risk portfolio, and they know they can prove it…

    Or they know that the American public is still over a barrel and that they can’t yet be replaced.

    • emptywheel says:

      I think the issue is not equipment or content–it’s who is analyzing the content. We know the telecoms are applying their customer analysis to the project. But is it possible that Lockheed Martin is applying an even more disturbing kind of analysis–probably the algorithm’s that declare vegans to be terrorists.

      • Rayne says:

        I don’t know that I could separate the components of domestic spying; without access, provided by entities that have been allowed specific market advantages and given public trust, it would be very difficult to gather data let alone analyze it. The folks doing the analysis and mfg. equipment/software also don’t have public-facing role.

        • emptywheel says:

          I agree with all that. I’m just saying that–if my current understanding of some of the possibilities is correct–it’s an issue of degrees of lawbreaking. We all know AT&T has let Bush into their backbone. But we don’t know what happened next, and it’s that what happened next that is the real secret.

  6. JThomason says:

    Its seems to me what MuKasey is arguing for is an elimination check on executive action in the Foreign Relations context and an aggressive expansion of executive power in domestic law enforcement. The national security letters, for instance, place the issuing function with the Attorney General stripping the Courts of this traditional function as the gate keeper against state intrusion.

    Traditionally in our system of law a difference in function exists between a lawyer and a judge. The legal arts delegated to lawyers are limited to agency, advocacy and counseling. To have lawyers set standards outside the context of any check by judicial decision making or professional risk for unsound opinions is novel power and an enlargement of the role of the government lawyer. Its hard to see this as anything else other than a fig leaf for the naked assertion of dictatorial powers. Its a betrayal of the dignity accrued to the Constitutional system arising of the will of the People. The effect is a movement to strip the judiciary of any moderating role between congress and the executive and leave impeachment and the purse as the congress’s sole remedy for executive excesses.

    What he seeks is moral license and situational discretion in the conduct of foreign relations and to chisel away at the sphere of privacy created by the Bill of Rights. Why is boundless aggression in and of its self a virtue. Law in the context of constitutional governance is in fact about limitation. How is it that the Mukasey fails to acknowledge this in sending forth a new class of lawyers. But Mukasey’s argument is consistent with the rejection of membership in the International Criminal Court and should be seen as a continuation of a “spoils” theory of the Presidency.

    Humanitarianism is a response to depraved colonial adventurism. Maybe we should chalk this up as more compassion emanating like light from the sun from the moral superiority of this White House. What, in fact, other then double dealing off shore savagery, the slow creep of a domestic police state, the economic disempowerment of the People and a monopoly of equity is he really trying to justify?

  7. Peterr says:

    I find Mukasey’s public (though implicit) defense of Yoo to be unfortunate. But I find the logic on which he based that defense to be downright dangerous.

    “Unfortunate” and “downright dangerous” are the hallmarks of the Bush administration.

  8. Peterr says:

    In all seriousness, I think both Goldsmith and Mukasey may be correct in describing how different groups of people reacted to the historical investigations you lay out (Church, Iran-Contra hearings, Judge Walsh’s I-C efforts, etc.).

    Some, like Comey, took the lesson to be something like “we government lawyers must be better at what we do” or as Marcy put it above, to be much better at properly granting (or withholding) that “bright legal sanction” covert operations people are seeking. As Comey put it at William and Mary’s “Charter Day” back in February:

    It is the job of a good lawyer to say “yes.” It is as much the job of a good lawyer to say “no.” “No” is much, much harder. “No” must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. “No” can be the undoing of a career. And often, “no” must be spoken in competition with the voices of other lawyers who do not have the courage to echo it.

    It takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long-run, government under law is the government so many have died for.

    On the other side of things, we find Addington, Yoo, and Associates, and the lesson they learned from the investigations was to stonewall the investigators, work even more in the shadows than North & Co., and justify it all by screaming “national security” at the top of their lungs.

  9. skdadl says:

    Brilliant reading of Mukasey and the history. By the time I got to this sentence –

    Mukasey’s insinuation that the investigation into Iran-Contra was irresponsible has two very dangerous implications.

    – I was thinking “He can’t have been doing that, can he?” But he is, isn’t he.

    A question about this passage in Goldsmith:

    The Church and Pike investigations of the 1970s and the Iran-Contra scandal in the 1980s taught the intelligence community to worry about what a 1996 Council on Foreign Relations study decried as “retroactive discipline” — the idea that no matter how much political and legal support and intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment.

    Does Goldsmith ever say or seem to understand that no good lawyer, no good military or intelligence operative, in fact no good citizen, should be relying entirely on that logic — focusing on fears of “retroactive discipline” when in fact the bar must be and has been set much higher than that? It’s not as though laws concerning human rights come out of nowhere or have no deep historical grounding, or as though the overwhelming consensus on treatment that is simply beyond the pale is something that changes overnight. Or as though every individual’s responsibility to think morally can simply be lifted by a legal opinion or a “new set of rules.” What new set of rules could there possibly be?

    • emptywheel says:

      I think Goldsmith’s reading of the reasons behind–and frankly utility behind–human rights is very sophisticated. So no, on that point. But in this passage, he really is speaking more narrowly of what happens when CIA agents (or military interrogators) get sold down the river by the people who have ordered them to do something illegal.

      • JThomason says:

        What is the value of sophistication in justifying human rights, a healthy sense of decency would seem to do? Isn’t the true dissembling, the particularly Luciferic foible, reliant on sophisticated legal arguments to justify savagery? Why not just be unapologetically beastly? Its so much more honest.

        Still, I know you are describing the culture of the DOJ where I suppose an instinctual compliance to organizational norms requires particularly “subtle” sensibilities.

  10. drational says:

    This analysis is quite insightful and rigorous.
    Mukasey is obviously a Cheney Tool. Iran-Contra as appropriate diplomacy? I particularly liked this quote:

    “In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave.”

    Nothing could be as “breathtakingly casual” as the legal opinion that the President has an unfettered constitutional right to pour acid upon or gouge the eyes of detainees…..

  11. WilliamOckham says:

    The level of non-sense in that speech is just breath-taking. Take this paragraph one sentence at a time:

    Many of those questions in today’s world revolve around the terrorist threat to the civilization we all treasure.

    This is the foundational lie the authoritarians have based their approach on since 9/11. Terrorism is a tactic of asymmetric warfare chosen only by groups who can’t pose an existential threat to their enemies. The only threat to the civilization I treasure comes from Mukasey and the power-hungry villains he defends.

    It should be no surprise that questions about how we should confront that threat have generated vigorous debate at this law school, and at others around the country.

    The surprise is that there are lawyers that defend an approach that isn’t just illegal, but completely extralegal.

    Those questions are among the most complex and consequential that a democratic government can face.

    The questions aren’t complex at all, but they are consequential indeed. Will we have a democracy or a constitutional dictatorship?

    How we as a nation should seek to protect ourselves; whether the steps we take are proportional to the threat and consistent with our history and principles; where the legal lines are in this new and very different conflict; and, as a matter of policy, how close to those legal lines we should go, and whether the lines themselves should be redrawn – these are questions that, understandably, trigger passionate debate.

    Asking questions is one thing, founding them on blatantly false assertions is another thing altogether. We are not in a new and very different conflict. Every dominant military power in history (well, at least all the ones we have written records for) faced a “terrorist” threat. The only thing that could be new and different is how we respond. Unfortunately, Mukasey has aligned himself with a faction that proposes a cure worse than the disease.

    • skdadl says:

      I watched the second day of Mukasey’s confirmation testimony back in November, and at the end of Schumer’s first set of questions (I can’t quote those now, but he must have been asking about waterboarding), as Schumer turned away from his mic, you could clearly hear him say to a staffer or a colleague, “I’m so angry.” That was quite early in the hearing, so it was my first alert that something was wrong, although I think that Leahy (and probably everyone else but me) was already bothered.

      I guess Schumer wasn’t angry enough.

      • drational says:

        “I guess Schumer wasn’t angry enough.”
        Schumer greased the wheels for his appointment, and voted FOR Mukasey out of Committee.
        I think he was angry Mukasey would not lie to make Schumer look reasonable.

      • emptywheel says:

        I think Schumer was “angry” that he had staked his reputation as a broker of sound compromises on a mistaken understanding who Mukasey was (though I do wonder whether Muaksey misrepresented who he was, or whether Addington exacted what he needed out of Mukasey at their little meeting).

        But that doesn’t mean Schumer’s not still going to embrace that broker role, even if he looks like a schlump right now.

        • Leen says:

          Do you really think the reasons that Schumer and the other Democrats who decided to vote for Mukasey were based on “sound compromises”. Or were their votes based more of that “cycle of timidity” that our nation was witness to in the run up to Iraq and on so many other issues.

          I am going to change Mukasey’s sentence around just a bit. Mukasey
          “We cannot afford to invite another cycle of timidity” IN OUR CONGRESS OR OUR JUSTICE SYSTEM “the stakes are too high”

        • skdadl says:

          Oh, in no way was I trying to justify Schumer; I watched the confirmation vote too, and by then I was wondering how Schumer (and Feinstein), who had gone after AGAG so hard, could possibly see a difference, since I couldn’t see much difference. (I sort of feel that I should be as polite and understated about other people’s schlumps public figures as possible, though.)

          [NB: Date wrong in my earlier post — the confirmation hearings were in October.]

      • readerOfTeaLeaves says:

        IIRC, the point was that Whitehouse had asked McK about waterboarding, and the AG nominee had refused to answer. The thing Schumer was ‘angry’ about was that Whitehouse had stumbled into an area that some on the committee didn’t want raised.

        Thus, ‘anger’, not at McK, but that the topic of his not being willing to go on the record against waterboarding/torture had bubbled into the open.

        • skdadl says:

          Well, I don’t mean to argue this too far, but no, I don’t think so. The open confrontation with Whitehouse came later — Whitehouse is always the last questioner (in each round), and by then things were very very open; Whitehouse wasn’t stumbling on to anything. He knew, and by then everyone knew.

          In fact, during that session, a couple of senators, Leahy and at least one other, asked Mukasey point-blank whether he had talked to anyone the night before, given that his testimony seemed to differ so much from the first day’s and from earlier interviews members had had with him. I’m not sure that those confrontations came before Whitehouse but I think that at least one did. Mukasey answered that all he’d done the night before was have supper with his family.

          I do have a slippery memory, but sometimes things shock me enough that I register them pretty well. It was Schumer’s exclamation that jolted me that day, and I registered everything after that, although I expect that EW’s reading of Schumer’s anger is correct. Well, anyone’s would be better than mine — I’m just an innocent abroad here. *wink*

  12. JohnLopresti says:

    I read a lot of braggadoccio in Mukasey’s political remarks. There was the gloat over the invitation to appear at a university known for producing liberal graduates and with a recent tradition of regressive administration; so, his was an appreciation of the neocon tide at a BC in retrograde. BC continues to produce leaders, and to harbor good profs, but there is a dilution of its ability to connect with mainstream US humanitarian traditions. Simultaneously, Mukasey is being the spirited defender of Bush as the standard bearer for that core of the Republican party which hopes to fan the embers of US class and caste conflicts to shore up its bankrupt amorality; and in that sense Mukasey simply provides a few more months of protection for what is a waning kind of profiteering at the expense of both environment and health and sustainability of the body of law which nurtures growth in the international community. But I think Mukasey thinks little about that kind of future need for vitality from the domain US law. The emergence of McCain as the ancient standardbearer of the R party is yet another indication that this is taper rather than ignition. Another boast Mukasey attempts to use for a taunt is the mucky demise of the Independent Counsel statute amid an impeachment proceeding, crowing that Congress is a lesser counterbalance and extracting from that acquiescence during a time of two concurrent wars prosecuted by the US, a biased and historically selectively supported rendition of why benevolent despotism, after all, was what our nation’s founders had in mind when they rejected British colonial rule and declared independence. This was an experiment, by some smart people in c. XVIII, and systematically the neocons pick tales of US caste conflicts as vignettes to prove the validity of their hypothetically impervious executive as the sole viable model of separate and unequal, as a surrogate for separate and equal branches of government. C.1970 is one of the central times of reference for neocons, a moment when public rhetoric was heated and there was much social unrest in US and abroad. The intensity of argument in public media and on campuses then sometimes is a context forgotten in the more subdued demipedagogy of the neoideologues such as Mukasey and their minions in the Addington and Yoo cadres. I can understand why Chuck Schumer favored a Mukasey nomination to the AG post; there is something acerbically likeable about Mukasey’s dance. But Mukasey is a poor historian, and inept defender of his predecessors.

    There is another issue with respect to OLC as a useful adjunct to presidential decisionmaking which Mukasey discusses, and I think in that zone he is close to some of the classic problems which have plagued DoJ longtime. White House counsel is going to develop political targets, and ask OLC to reverse engineer those partisan strategies. This will occur in Democratic party administrations, as well. It is the nature of the relationship between OLC and White House counsel. Yet, I look before Reagan, or, perhaps better stated, directly at Reagan, or alongside Reagan, at Bush senior, for some of the roots of the ongoing problem of executive abuse of OLC’s native service. Bush senior emerged from the era in which formal reorganization of intell agencies was a new age exercise, and was a fork of the strategies of foreign policy in those times. Reagan barely could read the scripts he was given, and even less understood his own instrumentality in corrupting the presidency. Given all these layers of fictitiousness in governance, it is hardly a surprise that the problems in parts of the world led by Arabic peoples, now, have been the trigger for disputes with the US and exacerbated the retrenchment of numblingly disastrous US postWorldWar foreign policy. I think of the Cambodia bombing campaign, or even the Truman disputes over napalming entire villages in North Korea as early prime demonstrations of this kind of foolhardy exercise of US foreign engagement.

    There is one exception I would note in my dim compliments toward Mukasey, in the word selection cited, in which he mixes some turbid metaphors calling our conversation “casual”; it is strident, not disinterested. He may be the front man for the administration in his speech at BC Law commencement, but the objections voiced about the sickly history telling according to Yoo and Mukasey are far from idle. What we are addressing is how to speak clearly so that we may grow, and it ain’t a neocon vision of despotism we have in mind.

  13. ezdidit says:

    His defense of Yoo as a reaction to “timidity” is breathtaking.

    Rather, and more to the point, the theory that 9/11 could have been prevented if CIA/NSA/FBI had not been so “timid” is a baldfaced lie.

    All the signs were there, a priori, and the President and his nebulous NSA Advisor, Condoleezza Rice, chose to do more than willfully ignore “binLadin Determined To Strike In U.S.,” all previous communiques and stern warnings from Anthony Lake, who delivered his brief from Clinton in person and ex officio. (He had left the Clinton administration previously.)

    The record is clear: the stated policy of the Bush Administration was apparently, and not inferentially, to stand down its defense against the attack that was calmly and rationally predicted by NSA terrorism specialist Richard Clarke, who was only allowed to brief “with his hair on fire.” The FBI was instructed (improperly instructed by Administration officials) to stand down its investigation of Saudi emigre/”students” requesting eccentric pilot training.

    And, without any logical subtlety at all, Mukasey defies the facts in his objurate prediction that “timidity” in the face of the most obvious intelligence will again lead to attacks in the future. This is not an honorable man. This is a political mouthpiece for Cheney/Addington and neoconservative idiots who should be exiled or locked up so they can do no more harm here on our shores. This man is so stupid so as to be without any intellectual value at all. No honor, no ethics, no morals and no creed, …an apt spokesman from the Bush administration. idiotas.

    • McKinless says:

      I appreciate ezdidit’s quotations marks around “timidity.” That’s Mukasey’s scurrilous word, suggesting lawyers were afraid to interpret the law properly. It were Yoo/Bybee/Addington et al who were running around like scared children writing justifications without reference to existing law and then refusing to go public with them.

    • emptywheel says:

      In an earlier version of this, I noted that one of his two bases (the third being another inaccurate citation of Goldsmith) for claiming “all but unanimous” support for the timidity=9/11 argument is the Robb-Silberman report. Which is troublesome not just because, by citing Silberman for an argument partly relying on a peculiar understanding of Iran-Contra, he’s making a self-reflexive argument. More importantly, the Robb-Silberman was scoped to prevent the commission from assigning any blame to Bush.

  14. Mary says:

    Boston U to Mukasey: Thanks for using the graduation of law student to come advocate for torture, for fibs to Congress and the Courts, and for a Dept of Justice that protects torture and lawbreakers as long as they wear the school tie (you know, the one with pictures of taxi drivers having their legs pulverized through repeated blows until they die – such a colorful tie, it’s good to see he’s trying to build interest in wearing it).

    What is with the eumphemisms? Iran-Contra wasn’t “aggressive” it was illegal. It was using funds in a manner prohibited by law. It was lying and more lying and obstruction of justice and, oh yeah, more lying to Congress.

    It’s not “risk averse” to require proof and trials and it’s not “aggressive” to murder men, women and children without proof and to set up worldwide torture on whim. And it’s not “risk averse” lawyers (what a joke – how many of them turned in their jobs at DOJ and really took the risk by signing up for the frontlines -not JAG- of Army or Marines?) that make us less safe, but instead, over and over, it’s the blowback from our depraved, immoral, illegal and corrupt actions without consequences around the world.

    And it wasn’t “risk averse lawyers” who screwed the pooch before 9/11. It wasn’t a failure to kidnap and torture bipolar London chefs or children who were sent to buy tomatoes that led to the disastrous failures by the loyal Bushies. It was the chickens wearing crinolines and Cheney underoos who set up the massive failures. The staggering failures of Bushie competence were coupled with a deficit of courage, not if courage to break the law, but of courage to tell George Bush to drag his butt back from vacationland and do his job.

    Sure, there were quarreling and warring departments, but one of their main problem was a lack of leadership – not a lack of leadership to pile crime on top of crime and fully use every asset of the Executive branch to further depravity, but rather of lack of leadership to act competently.

    And it wasn’t an overbearing Congress that really generated FISA. The courageous, aggressive stance wasn’t taken by the Executive branch or even by Congress. As usually happens, it was taken by one man. Judge Keith, drawing the line. The line was later affirmed by the Sup Ct, and it was an effort to provide safe havens that generated FISA.

    And it is not a situation where somehow the Executive branch has ties that it did not have historically. Rather, the Executive branch has access to technology that allows it to do things that would have horrified the founders of this nation and do horrify normal people domestically and abroad. Not every advance in technology is meant to be a grant of additional powers to the Executive branch. The fact that you CAN roam the world more easily in planes doesn’t mean that the Executive is ENTITLED to roam the world, kidnapping and abusing children for the amusement of a frat boy. The fact that you CAN intercept the communications of all Americans on American soil and sift and sort, doesn’t mean the Executive is ENTITLED to use make those interceptions or to use that information to to decide who to kidnap and send to blackholes for abuse or to be tortured to death, or for blackmail or to punish politically, econmically and personally, again on whim and without strictures of law or morality.

    What tripe.

    • strider7 says:

      Its still not clear to me why,in light of all the issues that would have to be confronted,legal and moral,would these guys even consider torture.What is there to gain vs the risk?

      • WilliamOckham says:

        Different answers for different folks:

        1. To assuage their guilt for having ignored the warning signs that 9/11 was coming.

        2. For the pyschic thrill of torture (this is more common than a lot of people want to admit).

        3. Fear for personal safety.

        4. To gather information to confirm their world view and policy preferences.

        • pdaly says:

          4. To gather information to confirm their world view and policy preferences.

          This reminds me of a study I read somewhere (sorry no link). Police officers were tested on their ability to tell if a subject is lying to them. The officers felt their abiliity to tell whether a person was lying to them improved with time on the job.

          The study showed they were no better than others or better than their earlier selves at telling whether a subject was lying. The only measure that increased over time was the officers’ confidence in their ability to discern between the truth tellers and the liars.

          Imagine if you add the “positive feedback” of confessions made under torture to this growing “I’m getting really good at this” mentality.

  15. JohnJ says:

    I hope as a compliment to the great points here, let’s reduce this crap to the base of all of it:

    I see two themes:

    – the DFHs caused 9/11 with all this non-GOP “liberal” thinking.
    – “we weren’t incompetent; it was that our hands were tied” see point one above.

    My argument to this day is that the patriot act nor any of the other “reforms” rammed through a country while still in shock would have prevented 9/11. Marginal competence of these same people within the existing rules would have stopped it dead, with the level of incompetence directly proportional to the size of their paychecks.

    -OBL WAS known, and these same people were warned.
    -INS didn’t follow up on visas violations.
    -The FBI ignored agents that tried to raise a warning.
    -CIA (or whosoever job it was) didn’t communicate about these suspicious people they knew about.
    -NSA was vacuuming up all communications, but were too incompetent to realize they needed people that spoke the language to figure out what was being said. (Democrats speak English, why would they worry about some Arabs?)
    -No one noticed that someone wanted simulator time for commercial passenger planes when they were clearly not qualified to be come airline pilots (that DOES NOT include taking flight lessons for light planes, that would be a NORMAL activity).
    -Airport security was too untrained/incompetent and busy talking and drinking coffee to notice suspicious body language.

    At any point mentioned, the plot could have been disrupted without changing a single existing law. In fact competent supervision of the existing system alone would have.

    To me this is all still a cop following you into the emergency room trying to get you to wave your rights while you are concerned about how they are going to reattach your arm. (yeah, I know; the Shock Doctrine).

    The late great Peter Jennings did a piece a few years before he died about the “drug wars” that was indicative of how law enforcement pretends to do their job; he said something like “remember, whenever law enforcement asks for a dollar to help stop dangerous drugs like heroin and crack, they spend $0.95 of it on arresting pot smokers”. They bring up all the dangerous stuff they could be doing to protect us, while actually only doing the easy stuff of questionable value to put in their 40 hours (but they get GREAT toys to play with).

    Notice that all our time is spent trying to dispel the smoke the incompetent people have blown, and very little is spent to bring competence back to the existing system.

    (extreme overuse of the word ‘incompetence‘ intensional.)

    In a nutshell, the incoming regime was too preoccupied with setting up a permanent Repug rule to actually try to protect the surfs they were trying to control.

  16. Leen says:

    Those six Democrats who voted to confirm Mukasey (for torture)…..asey-vote/
    The following six Democrats voted for Mukasey anyway, signaling that it’s just fine with them if the Attorney General of the United States doesn’t enforce laws against torture:

    Evan Bayh of Indiana
    Tom Carper of Delaware
    Dianne Feinstein of California
    Mary Landrieu of Louisiana
    Ben Nelson of Nebraska
    Charles Schumer of New York

    The Democrats Who Voted to Confirm Torture

    The Democratic Party ought to have no place for pro-torture politicians like these. If the Democratic Party leadership was truly opposed to torture, it would find strong challengers to these unworthy incumbents. Given the Democratic leadership’s apathy, it’s up to the grassroots Democrats to reform the Democratic Party – by only voting for Democratic candidates who are truly progressive.

    (Source: Library of Thomas)

  17. Mary says:

    19 to the civilization we all treasure Well, that explains why the DOJ-imperial “we” horde it so, keeping it for the benefit only of their selected few and depriving the treasureless peasants who haven’t kissed the King’s ring from any ability to even see the light a reflection of that civilization, as they are being tortured and abused, day after week after month after year.

    Those questions are among the most complex and consequential that a democratic government can face.

    The questions aren’t complex at all, but they are consequential indeed. Will we have a democracy or a constitutional dictatorship?

    Amen. Except scratch the constitutional part, since it becomes totally irrelevant once the ring is kissed.

    22 Congress both invited the problem with Pelosi taking impeachment “off the bench” and ignored the problem in their whole hearing process, with no one making the very obvious observations that the Executive branch was so riddled with depravity, blood and death from hordes of victims, spanning over a million refugees and countless dead children and orphans, that there was never going to be anyone offered to Congress who had not promised to follow the path of the dissolute.

    The fact that in Hamdi a case such as Ex Parte Milligan, from Civil War days, plays such a featured role in the decisions makes it very apparent that there is not some “new” humanitarian-driven fuzz factor that is at the heart of the constraints. All those same arguments were raised back then – the “this is a new kind of war” yada yada. And in the end, the question is always the OLD question, of allowing a man and his minions to torture and kill on whim, or requiring that they follow, even in times of war, the constraints of law.

    And the men in the dock at Nuremberg could have made those same argument – the safety of their nation was too important to be “risk averse” and the stakes were too high to allow “timidity” over torture and murder to hold sway. None of these are new arguments, they are raised over and over, with mind numbing frequency. It was at the heart of the Executive’s arguments in Milligan, and equally so when Mitchell asserted that the Executive was not bound by law and attempted to destroy Judge Keith. The major difference being, that in Milligan and the Keith case, the lawyers in the Executive abided by court rulings on the way to final determinations of those cases.

    Under Bush, the lawyers have time and again lied to the courts, destroyed evidence, and abandoned even a semblance of acting within the bounds of law. And they take with them every night the blood of those who have died, not because lawyers were risk averse, but because lawyers abandoned their duties to the law and helped insure that people would be tortured “to order” so that Dick Cheney and Donald Rumsfeld and George Bush could have their Iraq invasion and decimate a nation. Whether they “knew” the specifics or not, they “knew” in the sense that any reasonable lawyer would be deemed to know the direct consequences of allowing and authorizing and advocating for Executive branch disappearances and torture. There’s nothing “new” about a leader wanting or claiming that power, and there’s nothing “new” about the legal response to those assertions, or about the fallout and horrors of providing the wrong response.

  18. Mary says:

    27 – Exactly. There was no “state secret” or new, miraculous “interrogation tactic” being protected. Just a bunch of cowardly law breakers, hiding their opinions for the exact reason that they were on their face invitations to conspire in torture.

  19. Mary says:

    ezedit@24 Rather, and more to the point, the theory that 9/11 could have been prevented if CIA/NSA/FBI had not been so “timid” is a baldfaced lie.

    Yep, and just as his earlier public assertion that there was somehow a calls from a known safehouse that weren’t listened in on because of timidity, his claims now that it was risk averse lawyers who caused 9/11 should be something for which he should answer to Congress. But in the end, with this Congress, with people like Schumer and Bayh and Feinstein etc., what will it matter. They invite depravity for political stimulation.

    • JohnJ says:

      Yep, and just as his earlier public assertion that there was somehow a calls from a known safehouse that weren’t listened in on because of timidity,

      I say again; incompetent and lazy. The rest is all smoke.

  20. Leen says:

    Mukasey “We cannot afford to invite another “cycle of timidity” in the intelligence community, the stakes are too high.”

    Were Richard Clarke’s warnings signs of that “timidity”

    Ex-Aide Recounts Terror Warnings
    Clarke Says Bush Didn’t Consider Al Qaeda Threat a Priority Before 9/11

    By Dan Eggen and Walter Pincus
    Washington Post Staff Writers
    Thursday, March 25, 2004; Page A01

    President Bush’s top counterterrorism adviser warned seven days before the Sept. 11, 2001, terrorism attacks that hundreds of people could die in a strike by the al Qaeda network and that the administration was not doing enough to combat the threat, the commission investigating the attacks disclosed yesterday.…..Mar24.html

    “• In the summer of 2001, veteran counterterrorism officers privy to reports on al Qaeda threats “were so worried about an impending disaster that one of them told us that they considered resigning and going public with their concerns,” according to one of two staff reports issued by the commission yesterday. Senior CIA officials were also frustrated by some Bush appointees who were not familiar with surges in terrorist threat information and questioned their veracity, the report said.”

  21. klynn says:

    “Breathtakingly casual” irt a legal opinion on torture? I had no idea that any legal opinion on torture could be breathtakingly casual…WTH IS breathtakingly casual anyway? (bmaz, that’s a question to open the door wide for you…)

    Wow, we are now reaching new heights in “legal speak!” The art world just might get jealous…

    Mukasey rolled this bull out just in time for all that was swept up in the Office of Special Council raid too…in addition to censoring Durham’s investigation…

    EW, excellent, excellent analysis and dissection of Mukasey defiling justice and the balance of powers. Thank you for catching this…

    I guess he’s set to roll in the 8 mil from Main Core into detention…

    Thanks for the added comments Mary and Leen…

  22. Leen says:

    “Wow, we are now reaching new heights in “legal speak!” How about new lows.

    Mukasey seems to be just hunky dory with our nation having been thrown into the abyss by the actions (legal interpretations) of officials in the Bush administration

    • klynn says:

      “heights” was more in reference to the height of the pile of —- irt legal ease, legal interpretations of the Bush Co.

      Mukasey’s complacency is disturbing…A character quality an Attorney General of a Democracy should never have nor promote…He’s simply a legal enabler…

      “Cycle of timidity,” if I didn’t know better, I’d say Rove wrote that. This is the Reps new phrase to play as the fear card.

  23. earlofhuntingdon says:

    Mukasey’s analysis is deeply flawed. It’s a caricature, like those 1940’s Loony Toons of America’s Second World War enemies. It would be humorous were he not Attorney General.

    He characterizes investigations and “reform” – ie, imposing legal restrictions on the use of violence and illegal surveillance – as the problem. He thereby characterizes the “aggressive policies” that ignored those laws as useful, logical consequences of flawed Congressional oversight. That turns one of our biggest current problems on its head: the lack of adequate Congressional oversight over an errant, incompetent, ruthless presidency. Further, it implies that Congress can perform no useful legislative role in providing new or revised laws – and appropriations to pay for their implementation. It should shut up and let the President protect us, thereby sanctioning his extra-legal acts.

    Mukasey labels oversight as the wrench thrown into the military/intelligence gearworks. That’s blaming Congress for White House and executive agency wrongs. He should examine that tree in his own eye. At the time of 9/11, FBI computers wouldn’t speak to each other, much less to those at other agencies. Same with its agents. The Bureau’s computer systems reportedly remain a nightmare, despite attempting one expensive fix after another. Meanwhile, his agents troll for data via indiscriminate use of warrantless searches. His DOJ’s lawyers gave the President what he wanted. They told him it was legal, instead of telling him how he might make it legal, other than saying, “because the President said so.”

    Coordination of intelligence data was a legitimate problem that made it harder to piece together the clues about the 9/11 attack before it happened. The formation of DHS was one action designed to improve that. Bush used it to divest almost two hundred thousand civil servants of their union protections. Despite the billions in transition costs, DHS doesn’t seem to have solved any problems; it has made it harder for citizens and immigrants to get respect or accurate information from the government.

    Bush broke down the legal firewalls reasonably put in place to prevent sharing of non-vital, non-investigatory data between agencies: the IRS, the Bureau, treasury, DoD and others. But it doesn’t seem to have enhanced much coordination. It has opened up personal data records across the board to White House operatives and sent billions in revenue to outsourced service providers. The outsourced military/intel industry now rakes in $200 billion a year. But there’s been no discussion of its efficacy or cost-effectiveness. No discussion of the cost in civil rights and privacy in exchange for apparently modest gains in security.

    Mukasey Boston College speech wasn’t describing the past. He was saddling up a GOP pack mule carrying its beans and coffee. The supplies it will need in a siege, defending what ought to be an onslaught of investigations and prosecutions by a Democratic president and Congress. Even when he talks about history, Mukasey principally refers to “excesses of the 1960’s” and thereby gives most of the Nixon’s and Reagan’s criminal wrongdoing a pass.

  24. pdaly says:

    Mukasey stumps me. He knows the law, practiced the law, and yet he is so eager to ignore it –all for protection of political hacks who do not see democracy/republics/rule of law as their end game.

    I’m curious what William Webster would say to Mukasey’s speech at Boston College. Webster became the CIA director (1987-1991) appointed by Pres. Reagan after serving as the director of the FBI (1978-87) appointed by Pres. Carter.

    I cannot imagine Webster agrees with Muksasey, but where is he? Why is Webster not speaking up? According to wikipedia, Webster holds some sort of chairman position advisory role in the Dept of Homeland Security (chairman, Homeland Security Council).

    Does this position prevent him from making public statements about our current administration?

    If I can summarize Webster’s CIA tenure correctly, one of his main goals was to have the CIA follow the laws of the land. Although the CIA has the country’s permission to break the laws of foreign countries in order to defend America, the CIA is not interested to break the laws of this country. Breaking them was bad for the CIA’s reputation in the long run because of the fallout if and when it became public.

    If I’m summarizing correctly, this looks anti-thetical to Mukasey’s 2008 approach to the law.

  25. SmileySam says:

    Bugliosi’s new book ” The Prosecution of George W. Bush For Murder ” should really shake Gates up.

  26. Nell says:

    OT: Was too late to comment on the BAE thread, but wanted to respond to EW’s mention of outsourcing of domestic spying to avoid the oversight that exposed COINTELPRO.

    COINTELPRO wasn’t exposed by oversight, but by direct action: a break-in at the FBI headquarters in Media, PA in the spring of 1971 and subsequent publication in the media of many of the documents taken. The perpetrators have never been identified.

      • emptywheel says:

        It was a break-in to a LOCAL FBI office, and they had everything there readily accessible (the FBI’s filing problems are not a recent invention). It was almost certainly perpetrated by some of the people on the watchlists. But it has always sounded, to me, like a heist of a local strip mall office or–as happens frequently–a breakin at a local political office.

  27. freepatriot says:

    mulkasy’s reasoning comws down to this

    the bank was robbed = the 9/11 attack

    after the bank robbery some bank employees went and stole the money that the bank robbers left behind = mulkasy’s defendants

    so we shouldn’t punish the employees who stole money after the bank robbery because that might cause more bank robberies

    now, does THAT make sense to anybody ???

  28. emptywheel says:

    Here you go:

    Thirty-five years ago today, a group of anonymous activists broke into the small, two-man office of the Federal Bureau of Investigation in Media, Pa., and stole more than 1,000 FBI documents that revealed years of systematic wiretapping, infiltration and media manipulation designed to suppress dissent.

    The Citizens’ Commission to Investigate the FBI, as the group called itself, forced its way in at night with a crowbar while much of the country was watching the Muhammad Ali-Joe Frazier fight. When agents arrived for work the next morning, they found the file cabinets virtually emptied.

    Within a few weeks, the documents began to show up — mailed anonymously in manila envelopes with no return address — in the newsrooms of major American newspapers. When the Washington Post received copies, Atty. Gen. John N. Mitchell asked Executive Editor Ben Bradlee not to publish them because disclosure, he said, could “endanger the lives” of people involved in investigations on behalf of the United States.

  29. bmaz says:

    Is Mukasey suggesting it would be improper to hold John Rizzo or Alberto Gonzales responsible for lying to Congress, which both have been alleged to have done?

    Yes, of course he is.

    Does an expectation that Administration officials tell the truth to Congress lead to risk aversion in intelligence operations?

    The kind of invasive and illegal intelligence operations Cheney and Unitary Execubots want to run? You bet it does.

    The implications of this view are disturbing. Mukasey is arguing that, if John Yoo is held responsible for the shitty opinions he wrote, then in the future some OLC hack writing get-out-of-jail-free cards won’t be so rambunctious in his opinions. Me, I consider that a good thing. But Mukasey implies it will lead to another terrorist attack.

    Bingo; and this is the root ball of wax, isn’t it? The neocon chuckleheads have, and not due to any real concern, but for their own self serving greedy devices, turned the founding principles of this country on it’s head and peddled the concept that the safety of individual citizens is more important than the principles and guarantees of the Constitution. To them, it is indeed just a “damn piece of paper” and it stands in the way of their world view and schemes. You have the takeaway exactly right.

  30. Nell says:

    EW: Rather, the things the intelligence community did not do that might have prevented 9/11 (specifically, to take out bin Laden in the late 1990s and to trace the calls between 9/11 hijackers and a known safe house in Yemen) were reactions to post-Watergate reforms, EO 12333 and FISA, respectively, not post-Iran-Contra reforms.

    Am I reading this correctly, as an assertion by EW rather than just passing along what Mukasey said? Because if so, I really have to take exception, as others have above.

    Could you clarify, EW?

    • emptywheel says:

      I’m pointing to the two things the 9/11 Commission identified as things that could have helped prevent 9/11 that in any way had to do with whether or not intelligence agencies backed off because of legal timidity.

      WRT taking OBL out, Tenet and to a lesser degree Clinton kept spiking operations designed to either kidnap OBL or, if violence broke out in the course of the operation, kill him. The big hesitation was EO 12333 that forbade assassinations (which was itself a direct response to some of the Church revelations that the US had repeatedly sponsored assassination attempts on Castro). The lawyers got into a squabble over how much violence had to break out to qualify as self-defense rather than assassination.

      WRT the intercepts from Yemen–this is actually the one example where the two SD-based hijackers were communicating with a known safehouse in Yemen. The NSC didn’t check who in the US was communicating with the safehouse because, in spite of the fact taht FISA allows such an intercept, the NSA generally did not follow such a practice. (That is, it was a cultural, but not legal, hesitation).

      I’m not saying either of these two things would have prevented 9/11 (though killing OBL might have–and the refusal to launch those operations is at the core of why Michael Scheuer blames the CIA for not preventing 9/11). I’m saying that–of all the things the 9/11 pointed to that might have HELPED prevent 9/11, these are the only two that actually fall under Mukasey’s arguments about risk aversion.

  31. masaccio says:

    EW, this is a really good post. They are playing with history to define their behavior as good. I heard the dumbest fucking guy on the planet yesterday on the radio, explaining that the administration was very aware of the need to balance civil rights concerns with the perceived threat of more terrorist attacks. All of these criminals are looking for someplace to hide from accountability. I don’t hold much hope for the spineless democratic party as a source for that kind of accountability, and I think people will have to insist on it loudly and repeatedly.

    At the same time, we do need to think about how we are going to defend ourselves against the threat of terrorists. I think we need to realize that this struggle is less than a war, but more than a matter of police action. We need a democratic (small d) solution, one we arrive at after careful thought, and one which has broad support. That, at least, we can hope for from a Democratic Administration. In the meantime, I am reading Terror and Consent by Phillip Bobbitt. It’s even longer than the OIG report, but at least it’s not a locked .pdf file.

    • emptywheel says:

      Let me know how Bobbitt’s book is. I think his Shield of Achilles is the most interesting totally wrong book I’ve ever read. So even though I’ve heard a lot of terrible things about Terror and COnsent, I’m considering reading it.

  32. Nell says:

    EW: But it has always sounded, to me, like a heist of a local strip mall office or–as happens frequently–a breakin at a local political office.

    In what way like those?

    • emptywheel says:

      In that it was a teeny office with inadequate security and the breakin could have been accomplished by two teenagers who knew what they were doing. Of course, the still-common breakins into local (usually) Dem party officers are probably done by recycled Republican Cubans or whatever they use these days.

  33. Hmmm says:

    It helps to remember this is the “CEO Presidency”. Finding the most legally plausible way for the client to do whatever it is that they want to do, even if it’s a totally specious way, is (can we be frank here?) what the vast majority of corporate lawyers do. They say Yes. CEOs like W and Dick and Rummy absolutely expect that, and if they don’t get the Yes from the primary lawyer, then if they want to go ahead bad enough (and can accept a level of risk based on the high dodgyness of the opinion), they go looking for some other lawyer who will give it to them. Almost any one will do.

    Saying No on the other hand, as per Comey, is what government lawyers sometimes have to do, which is why DoJ had to be gutted and then stuffed with Monicas and any remaining career folks had to be marginalized. Fredo and Harriet were pioneers in this field, inventing the form of acting-like-a-corporate-atty-while-serving-as-a-gov-atty back in Texas under Gov W.

    I mean, sure Mukasey was a Judge, but he was also a big-time corporate atty. That’s the only kind of creature who gets these jobs these days.

    • JThomason says:

      In my experience,the CEO/MBA expectation really is that they are entitled to be right because they have shopped and paid for a legal opinion that says so end of story. Its the kind of attitude that wants to monetarize justice just like health care was monetarized.

      • Rayne says:

        So in other words, Mukasey’s speech at Boston U was purely a PR effort, the kind of damage control that a corporate lawyer might be paid for, not for the kind of finely crafted legal opinion that will win in front of the Supreme Court and set in motion new legal opinion.

        Not only does disaster capitalism work its magic on economists, but upon the legal profession.

          • JThomason says:

            Zeal within the bounds of the law that is. These political statements made outside the context of adversarial proceedings are really designed to effect and change existing understandings of legal ethics and methods by creating a kind of authority and privilege in executive department lawyers that exist in the void created by the lack of any effective over site or effective independent regulation and of course are designed further to suggest such over site and regulation are superfluous.

            This can be suggested many different ways as has been demonstrated but I do think the CEO/MBA expectation in explaining this behavior is particularly elucidating.

        • strider7 says:

          EW really nails it this time
          Muckasys’a god damed shill,a paid shill
          I was under the impression that law is supposed to teach you “how to think” not “what to think”

      • readerOfTeaLeaves says:

        I actually beg to differ. There are probably CEOs who act as you say, but that’s true in every case. There’s a lot of truth to the old saw that ‘The cream and the bastards rise to the top.’

        I’ve seen a bit of cream a time or two, and it is true that a good CEO isn’t going to drive his/her company on the rocks of destruction by playing fast and lose with either the law, nor accounting practices.

    • strider7 says:

      great point
      Remember,back in the mid 70s,when Rummy worked for
      searle and couldn,t get the fda to approve Aspartame because it caused these huge tumors on the lab rats and the fda kept saying no until Reagan got rid of the head of the fda and appointed someone who would approve it?
      That crap is still in our food chain
      Circumvent the problem

      • bmaz says:

        Heh, one of my biochemistry professors at ASU my senior year (1979) led the research on aspartame behind the movement against it’s use and was later the foundation for the work of Woody Monte, another ASU professor that has been the big stick in Searle/Rumsfeld’s eye on this, and last I heard, is still tilting at them even after retiring.

          • bmaz says:

            Heh heh, I made a half ass stab at arguing the Twinky defense once, didn’t work for shit. Have to admit even I found it seriously far fetched, and I am a sucker for creative stuff like that.

  34. masaccio says:

    From the OIG report. Horton (a pseudonym) led a team of four at an facility which is redacted. Per my previous guess, this must be a black CIA site. He was concerned about the military use of interrogation techniques which would be forbidden to FBI personnel. He wanted guidance.

    Horton stated that even if the FBI was not present during such interrogations, FBI agents would inherently be participating in the process because they would be interviewing detainees who had either recently been subjected to such techniques by the military or who would be subjected to them after the FBI interviews were completed. He questioned whether it would be ethical for FBI agents to be involved in such a process and whether they would be held culpable for detainee abuse.

    • emptywheel says:


      I’m thinking of posting a working OIG Report thread, because I’m reading now and I’ve got stuff that’s not post-worthy that I’d like to publicly record.

      If you’re willing, do you know where your longer comment explaining the Qahtani transfer is? I’d like to use it for the base of the thread (with attribution, of course).

      I just forget which damn thread it was on.

  35. pdaly says:

    Slightly OT.

    Several commenters have confused Boston University (BU) for Boston College (BC). BU and BC are separate private institutions, and each has a law school.

    As EW writes in her post, Mukasey spoke at Boston College–a Jesuit university despite the confusing term ‘college’ in its name.

  36. masaccio says:

    Sorry, that is at 136 (180/438 on the .pdf reader). Be sure to check out fn 105: Horton said he was recalled to brief senior management because they valued his opinion. However several people said he was returned at least in part “because of concerns about whether he was emotionally suited to the Afghanistan assignment.”

    • emptywheel says:

      Isn’t this Dan Coleman, btw? One of the pseudonymous FBI agents is.

      Incidentally, what do you make of the MOU that sets up secrecy rules in 2003 (that is, not 2002, when the FBI was complaining about Zubaydah)?

      • masaccio says:

        I don’t know if Horton is Coleman. I would guess Coleman is Thomas. See page 80 (123/438 in your reader):

        Demeter [a pseudonym] told the OIG that, at this point, he requested that FBI Special Agent Thomas interview Al-Qahtani, because Thomas was in Demeter’s view the FBI’s “strongest interviewer.” According to one of the first FBI On-Scene Commanders (OSC) at GTMO, Thomas had already obtained confessions from several detainees at GTM and Major General Dunlavey, the Commander of Joint Task Force 170, called him “a national treasure.”

        The MOU you reference is telling. It uses the words “sensitive CIA debriefing sites”, which seems like a suggestion that the FBI was working at the DIA black sites.

        • emptywheel says:

          Agree. Though we KNOW they were at the Thai black site with Zubaydah. I’m guessing they probably signed the MOU–after either CIA wanted FBI back in or after FBI asked to be let back in–to give FBI access but prevent the FBI agencts from leaking about the experience like Coleman did. I rather suspect that there were a number of agents at black sites afterward that do not make it into this report, but that’s gut feel.

          Anyway, I’ve got the IG report working thread started–with your comment in a starring role.

          • bmaz says:

            Crikey, me either now that I try it; they DID send me an email telling me it did all this cool stuff though. I’ll see if I can find it. My bad.

            • emptywheel says:

              normally it works for me–stuff that is saved as an image still works as OCR. But not with some redacted stuff.

              Maybe Bill Jobs just doesn’t read many reports on torture, that’s the problem.

  37. bmaz says:

    Bobbitt? Isn’t he the idiot that wrote the op-ed orgasmically praising the warrantless wiretapping that I went ballistic over last summer?

  38. masaccio says:

    EW, it was 95 on the BAE Bribes thread. I like the idea of putting this on one thread. I actually think I will get a .pdf OCR reader and convert the document. Not being able to mark the thing is killing me.

  39. perris says:

    Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11

    how obsurd an arugment!

    we get less information through torture not more, we create more enemies against us we do not reduce the enemies against us, we will have more people plotting terrorism not less people plotting terrorism

    this guy is a tool, what he is endorsing is bringing us more harm, more enemies, less authority, less peace

    and he actually tries to make the the oposite case

    this is indeed an example of what they do, they find their weaknesses and flaws in their own policy and then they use those weaknesses and liabilities as an arugment to pursue their failed course of acion

    he is a criminal along with yoo and this administration

  40. Hugh says:

    First, I’m not exactly sure I would call funding the mujahideen in Afghanistan a success since many of these “Afghanis” returned home and started extremist movements throughout the Moslem world, including al Qaeda.

    Second, even if it was under FISA, this provided no impediment to wiretapping a safehouse in Yeman. We will never know if 9/11 could have been prevented but I agree Mukasey is wrong. George Tenet was not being timid when he was running around with his hair on fire. It was National Security Adviser Condoleezza Rice and others in the White House who de-emphasized counterterrorism efforts for more important priorities in the months preceding 9/11.

    Third, Mukasey is a hack quack and Boston College’s Law School should be ashamed to have given this war crimes apologist and unilateral Executive promoter a forum. It’s a little like inviting Jack the Ripper to address a gynecology program.

    • emptywheel says:

      Agree in general.

      But as to the mujahedeen, who knows whether, if after the Soviets withdrew, we had invested in Afghanistan, whether we’d be in the mess we are now. Probably, still. But the point is that Carter initiated this, not that Republicans afterwards fucked it up. In other words, the point is that Carter was not hampered from doing what Mukasey and all the rest of the neocons still gauge as a successful intervention.

      As to Tenet and the concerns that prevented attempts to nab bin Laden–those all precede Bush–they’re 1998 and 1999–so you can’t blame Tenet’s risk aversion on Bush.

      • Hugh says:

        As to Tenet and the concerns that prevented attempts to nab bin Laden–those all precede Bush–they’re 1998 and 1999–so you can’t blame Tenet’s risk aversion on Bush.

        Not my point. Counterterrorism folks like Clark and intelligence people like Tenet were trying to focus White House attention on terrorist threats in 2001 in the months before 9/11 and Rice and the White House simply refused to listen. That Rice failed horribly and miserably here and rather than having her ass canned she went on to State is an epic case of failing upwards.

        • emptywheel says:

          You’re making a very different point than me. You’re answering “who’s responsible for 9/11?” I agree that, if one person is responsible, it’d have to be Rice.

          I’m testing Mukasey’s argument that a reaction to Iran-Contra made intelligence officials reluctant to take risks–basically that risk aversion in response to Iran-COntra investigations led to 9/11. I show that Mukasey’s inclusion of Iran-COntra in a causal chain is wrong, for among other reasons, that the two things that the 9/11 Commission would argue might have prevented 9/11 but didn’t because timid intelligence lawyers prevented them were actually based on legal restrictions put into place in response to Watergate, not Iran-Contra.

            • Leen says:

              Are you saying that those who do not actually push the button or pull the switch should not be held responsible for supporting the destructive system that they have helped put in place?

          • Leen says:

            Have always wondered how true this story is about Israeli art students spying on the 9/11 bombers and if they could have prevented 9/11 from happening. Well besides Stephen Hadley, Condi Rice and others who Richard Clarke tried to warn.


            A DEA government document later leaked to the press [Drug Enforcement Agency, 6/2001] suggests that a large Israeli spy ring starts penetrating the US from at least this time, if not earlier. This ring, which will later become popularly known as the “art student spy ring,” is later shown to have strange connections to the events of 9/11.

            USA Today reports that “Israeli crime groups… dominate distribution” of Ecstasy. [USA Today, 4/19/2000] The DEA also states that most of the Ecstasy sold in the US is “controlled by organized crime figures in Western Europe, Russia, and Israel.” [United Press International, 10/25/2001] According to DEA documents, the Israeli “art student spy ring” “has been linked to several ongoing DEA [Ecstasy] investigations in Florida, California, Texas, and New York now being closely coordinated by DEA headquarters.”

            “A newspaper reports that the DEA study on Israeli “art students” determined the “students” all had “recently served in the Israeli military, the majority in intelligence, electronic signal intercept, or explosive ordnance units.” [Palm Beach Post, 3/11/2002]

            The Israeli Art Student Mystery at Salon

            Is this investigation still going on?

      • selise says:

        But as to the mujahedeen, who knows whether, if after the Soviets withdrew, we had invested in Afghanistan, whether we’d be in the mess we are now.

        i’m not going to support a foreign policy which caused the deaths of a million afghanis – regardless.

        as for not being in the mess we’re in now… granted this is hindsight, but clinton might have done a few of the following:

        1. not supported the biggest buildup of israeli settlers in the occupied westbank under cover of the oslo “peace process”
        2. removed our military forces from KSA bases, as we had promised to do.
        3. if sanctions were to be imposed on iraqis, they should not have included items required to sustain life.
        4. not undermined the iraq inspections regime by using it as an intelligence front in support of assassination attempts.

        i’m sure there are more… as much as helping afghanis would have been a good thing, i don’t think it was a lack of investment in afghanistan that got us into this mess. but neither was it due to risk aversion or timidity.

        there is such a thing as bad/stupid/immoral policy. apparently mukasey doesn’t see it that way.

        • Leen says:

          Such good points. Imagine where the situation in the I/P conflict would be if within the Oslo agreements Israel had agreed to stop with their persistent expansion of the illegal settlements. Constant aggravation for the Palestinians. Like sticking your finger in an open sore every few seconds.

          Yeah and those sanctions on Iraq under the Clinton administraion. How many deaths did that cause?

          Iaea Weapons Inspector Scott Ritter has written extensively about the Clinton administrations undermining of inspections in Iraq instead of completely supporting them. Ritter’s book “Target Iran” is a great read.

          Seymour Hersh and Scott Ritter on Iraq, WMDs and the Role of the Clinton Administration in the 1990s

    • Leen says:

      Hugh I have been spending a great deal of time with a young man from Afghanistan who is studying here in the states on a Fulbright. His father was a Brigadier General for the Afghani army and when Russia invaded he walked his whole family into Pakistan and then came back to fight the Russians. My friend who is 34 and one of 12 children has experienced the after effects of the U.S. abandoning the Afghani people after Russia was pushed back.

      Both he and his father feel the U.S. would be in a much different situation if they would have not abandoned Afghanistan. He has also shared that working and giving power to the Mujahadeen and then abandoning Afghanistan was a huge mistake. He has told me that the poppy growing industry (he worked in counter narcotics) was not nearly as developed before Russia invaded as the years after. He has shared that many farmers grew sizable amounts of apricots, pomegrante, almonds and that many of these orchards were destroyed during the war with Russia. We have talked about the poppy farmers being subsidized by the U.S. for at least five years while they re-establish their orchards and other suitable and profitable crops for export. We have discussed how Afghanistan needs the processing infrastructure to say turn almonds into almond butter to be exported to say Wild Oats or some other large export market.

      He talks with his father weekly and his father is convinced that the U.S. does not want to be successful in Afghanistan right now. He is not clear as to why, but he is convinced. Why else would the U.S. only spend I believe the figure is 20 billion in Afghanistan in six years what the U.S. spends in one month in Iraq.

      His family is terrified for him due to the growing strength of the Taliban and their possible response if they find out that he has been studying in the states on his return. (I have permission to say this from him)

      He firmly believes that the only way to deal with the Taliban is to incorporate them into the building of Afghanistan. To be inclusive with the Taliban who are not as radical as the picture that is painted of them. He believes that modernizing (hopefully improving access to education, health care and a legal way to support ones family) Afghanistan needs to be done slowly with a great deal of respect given to their Religious beliefs.

      did you know that Afghanistan has large deposits of uranium?

  41. tbsa says:

    Why would Mukasey feel the need to come out and publicly defend Yoo at this point especially in Boston?

    • SouthernDragon says:

      Probably because Yoo is the most glaring example of what’s gone on in the administration. Cheney’s comments re the Office of the VP being a separate entity showed a disdain for Congress and any laws it may pass restricting the activities of the administration, the unitary executive. The administration is following the principles laid down by Hitler once he had gained control of the Nazi Party, Fuehrerprinzip, or leader principle, where all laws come from the leader, or in Shrub’s case, the unitary executive. Congress is considered nothing more than a debating society. By defending Yoo, Mukasey is defending the concept of the unitary executive, Fuehrerprinzip.

        • SouthernDragon says:

          I think anyone who has studied the rise of the Nazi Party would see the similarities. The Rethugs spent 30 years doing what it took Hitler to do in about half the time, albeit without the violence towards the opposition. The propaganda is more sophisticated but used in the same manner. Using the attack on the WTC to grab power is akin to what Hitler did after the crash in 29. Without the crash Hitler may well have never been swept into power. Without the WTC Shrub may well have been defeated in 04.

          • SouthernDragon says:

            And I might add, certain parts of PNAC’s “Rebuilding America’s Defenses” allude to a “Pearl Harbor type event” being required to allow the neo-con agenda to take center stage.

            • wigwam says:

              There is no doubt that those bastards had in mind the establishment of a Fourth Reich that would bring security and even expansion to Israel, prosperity to the U.S., and Pax Americana to the rest of the planet. They simply did not count on the tenacity of the young men of Iraq.

            • Leen says:

              Ew and all. The PNAC website has been down for quite some time. Anyone know what the story is with that. I have been sending folks to that site for the last 7 years so that folks could read first hand what the Bush administrations plans were for the middle east.

              Here is what you get when you try to get to PNAC

          • tw3k says:

            It is simply a “lessons learned” approach. You can not replicated the Third Reich with contemporary information technology.

  42. kirk murphy says:

    EW, thanks for all the work this deep post must have required.

    ’cause IANAL, two aspects jump out at me:

    (1) Mukasey eagerly joins Cheney’s pining for the good ‘ol pre-Church authoritarian days: when the Security state was strong and virile – and Cheney had not yet been cripped by cardiac disease.

    We don’t have to call Siggy Freud to wonder how much these older men in ill-health have equated the ravages of their own physical infirmities with the lost days of their relative youth” when the Security organs and their own could stand up tall.

    the Church committee reproaches and reforms of the 1970s, which led to complaints that the community had become too risk averse, which led to the aggressive behavior under William Casey in the 1980s

    (2) The classic spousal abuser defense: I was “too aggressive” because he/she was complaining (so I’m not responsible for my own actions: the abused made me do it.)

    Gawd: I don’t how Bert Brown could tolerate Beltway culture and values as long as he did [until Carter’s obedient tool Califano fired him as NIMH head: but that’s another story….]

  43. wigwam says:

    After the first half-day of his confirmation hearings, I was appalled that the Senate let him condinue. Per Glenn Greenwald who was live blogging that hearing:

    When Leahy asks him about torture, Mukasey proclaims: “we don’t torture because that is not what this country is about.” … About the Bybee Memo — which declared that the President has the power to override legal prohibitions on torture — Mukasey says about that Memo: that “was worse than a sin; it was a mistake. It was unnecessary.” He says: “the broad grants of authority were unnecessary.” He seems to be saying there that there was no need for legal theories justifying tortue because we were never torturing anyway (hence, such theories were “unnecessary”).

    It was progress to get this pervaricating sack of shit to admit that waterboarding might be torture.

    Everyone needs to understand that Mukasey is a full-standing member of the dark side, as are the senators who sponsored him.

  44. prostratedragon says:


    Mukasey’s insinuation that the investigation into Iran-Contra was irresponsible has two very dangerous implications. First, it suggests it is improper for Congress to conduct an inquiry into the executive branch after the executive branch ignores a very clear law passed by Congress. […]
    But [second] that wasn’t the only investigation into Iran-Contra, after all. There was also Lawrence Walsh’s investigation, as Independent Prosecutor, into the events. [… And from that,] the big fall-out at the CIA, after all, was that Duane Clarridge and Clair George were indicted (and then pardoned) for lying to Congress; […] Is Mukasey suggesting it would be improper to hold John Rizzo or Alberto Gonzales responsible for lying to Congress, which both have been alleged to have done? Does an expectation that Administration officials tell the truth to Congress lead to risk aversion in intelligence operations?

    With potentially unspeakable consequences!!!

    Yes, indeed, as important as it is, or would be, to hold this outfit responsible for their past, it is more important to try to get ahead of them like this, and show where their arguments point: all the more so since it looks like we citizens are on our own here.

    Regarding NY’s senior senator, I think he was annoyed at having the tenuous basis of his bargain aired, which iirc was thought at the time to have had at the root of it some heavy-handed overnight coaching from the chief veepsman, who apparently wouldn’t know a social cue if you dragged him over to the accomodation rack at the local pool hall and broke one over his head.

    The other side of that, on my conjecture, is that with Mukasey in charge we don’t have to worry ’bout any messy federal cases getting in the way of stern letters to folks who laid the basis for the entire credit debacle, or mucking up related cases in state courts, or any such.

    (That underlying story was covered last week here, but since this kind of thing, i.e. what caused the shitpile, always relies on tailored opinion, it was expected, as are more of its kind.

    As I proofread this, NPR update has a piece with all the finance professionals who, it is becoming very clear to all, shuddanode better, trying to blame the raters for the whole thing, as if they had no obligation to supply any input of their own. Mais calmez-vous, mes chers, for the SEC is going to look into making new rules …)

  45. maryo2 says:

    This is about Mukasey’s so-called “senior” government lawyer:

    “He had only been working there two months, hired to answer the White House’s questions on foreign-policy laws at a time when the biggest legal issue before him was a treaty about polar bears.”

  46. Praedor says:

    What total crap. I hate to go all Godwin here but…

    Before the fall of Nazi Germany, all the techniques and activities the Nazis carried out (ALL of them) were “legal” under their civil and legal framework. There was no danger at all that any Nazi official or mere flack would be punished for what they did because they had full legal clearance and assurance that what they were doing was A-OK.

    But then they lost the war and what happens? A NEW legal framework is extant, one that doesn’t give any consideration for the fact that under Nazism, everything these guys did was legal. I guess Mukasey must also bemoan this fact. Those poor Nazis, they did what they were assured was legal and they STILL got reamed later on.

    Of COURSE CIA, FBI, military, and civilian contractors should worry that they will get their asses handed to them in the future. Legal opinions by the totally discredited OLC aren’t worth the paper they are written on and, imagine this, it is even possible for the President to act illegally! S/He can even get into shit for ordering illegal actions – irrespective of what his “lawyers” say.

    Mukasey is unfit to be AG, unfit to have been a judge, and should be disbarred and tried alongside Bush, Cheney, Rice, Rumsfeld, Yoo, Haden, Mueller, Hadley, etc, etc, for every single illegal act that they have ordered, promulgated, or supported.

  47. emptywheel says:


    …holding al-Qahtani down while a female interrogator straddled the detainee was determined to be within the scope of the “Futility” technique (and act used to highlight the futility of the detainee’s situation).

    A pretty elaborate way to get around admitting you were trying to humiliate the guy.

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