Mukasey Refuses to Allow Criminal Investigation on Torture — Democrats and Republican Leaders Silently Cheer

Attorney General Michael Mukasey has performed the central task for which he was chosen by the President and leading congressional leaders — he is refusing to allow a criminal investigation into water-boarding. It was a decision that seemed inevitable after Democrats like Chuck Schumer and Diane Feinstein saved his confirmation.

Mukasey’s reasoning is bizarre: because Bush lawyers said it was okay, it was. The moment of truth came under questioning from House Judiciary Chairman John Conyers who asked Mukasey whether he was starting a criminal investigation since CIA director Michael Hayden and other have confirmed the use of waterboarding: “No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.”

So here is how the law works for General Mukasey. Bush appoints extremists who believe that he can order acts defined as war crimes by U.S. and international courts. They then say torture is permissible. When the crimes are revealed, the Attorney General says that since lawyers said it was legal, it was not criminal. That would mean that any crime could be magically transformed into a non-crime by simply hiring clueless counsel.

Of course, the fix was in some time ago with Democrats who repeatedly acted to prevent any serious investigation or confrontation on the issue — due in no small part to the disclosure of their own knowledge of the torture program.

Mukasey has repeatedly refused to acknowledge that waterboarding is a crime to prevent triggering an investigation. Mukasey’s last refusal came in a letter to the Senate. He stated that “[a]ny answer I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a highly classified interrogation program.”

From a legal standpoint, it is a facially ridiculous statement. There is no debate over waterboarding outside of this Administration. U.S. courts and international courts have long defined waterboarding to be torture — and a war crime. Our “adversaries” know that and they further know that we have used waterboarding as confirmed recently by both high-ranking Bush officials and former interrogators. Click here Mukasey — as in his confirmation hearing — was asked to confirm a legal standard akin to being asked if he understood a poll tax to be unconstitutional.

The most striking aspect of Mukasey’s letter is how fundamentally dishonest it is. He is clearly refusing to answer because he does not want to acknowledge that the President committed a criminal act. He knows that the Democratic leadership also wants to avoid such a confrontation — as evidenced by their decision to confirm him and the votes of Sens. Schumer and Feinstein to save him from having to answer the question.

Mukasey added that “I understand the strong interest in this question but I do not think it would be responsible for me, as attorney general, to provide an answer.” Of course, he took an oath to uphold the Constitution, but now believes that it would be irresponsible to address a criminal act ordered by the President of the United States. It reflects a rather curious understanding of both his oath and his duties. It is the same relativistic view that led to clearly false statements made by Mukasey under oath in first denying that he did not know what waterboarding was and then, when told what it was, refusing to answer the question during his confirmation.

In a maddening added comment, he insisted that “it is my job as attorney general to do what I believe the law requires, and what is best for the country, not what makes my life easier.” Yet, that is precisely what he is doing: taking the easier and unethical approach. The difficult course would be to enforce the law and state the legal standard despite its implications for the President.

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39 thoughts on “Mukasey Refuses to Allow Criminal Investigation on Torture — Democrats and Republican Leaders Silently Cheer”

  1. “In a further effort to strengthen the international
    effort to address the scourge of torture,
    our legislation commits the United States
    to use its voice and vote in the United Nations
    to support the investigation and elimination of
    practices outlawed under the U.N. Convention
    Against Torture and Other Cruel, Inhuman, or
    Degrading Treatment or Punishment. Mr.
    Speaker, I urge all my colleagues to join me
    in support of this important legislation.”

    Tom Lantos speaking on the Torture Victim Relief Act of 1998

    Tom Lantos, 1928-2008. Rest in Peace.

  2. DW: I really think that the Alabama and Florida cases are absolutely egregious and I do want to see how he responds to that. If he stonewalls again he will have lost my respect because they do not involve national security.

  3. Mespo, I actually greatly admired Judge Mukasey at one time, but I am afraid that he is confused as to where his constitutional loyalties lie now.

    Please investigate on your own the GOP/DOJ’s role in ongoing prosecutions in Florida and Alabama. Mukasey is involved and so much the worse for him, since this is actionable stuff and I very much doubt the Democrats are going to let sleeping dogs lie in this case–unlike torture, they never signed off on this.

  4. deeply wooried: I think you do have it right. It is unfair to blame Mukasey for failing to turn the DOJ around in the face of an Administration that apparently was dead set in favor of extreme torture to accomplish its goals when this crisis first broke. The point is that he may be doing more than we know since information has come out that torture is now prohibited or at least restricted. I think he is trying to insulate the perpetrators from war crimes trials by refusing to admit the obvious. It is not particularly patriotic but it does comport with the bureaucratic loyalty that I have seen time and again in this Administration. I feel certain that this policy of cocooning the CIA interrogators was what drove the Congress to refuse to outlaw waterboarding in the first place. Whatever we think of these torturers, they did it at the behest of the powers that be, and your point that it is wrong to sacrifice them instead of their masters rings true to me. That is precisely the purpose of the governmental authority defense (GAD) rather than the Nurenburg situation. In the case of the GAD, the actor knows it is illegal under US law, but his conduct is excused because it was done at the behest of a government official cloaked with the authority to empower the actor to act. Presumably the government official will have to answer for his actions later. I think it differs from the Nazi’s attempt to use the defense of superior orders at Nuremburg. The law developed there did not excuse the war crimes of German soldiers since the soldier has the duty to disobey an order to commit the war crime. This is probably what the CIA is worried about since the GAD only applies to domestic crimes.

  5. I worry though that although waterboarding has captured our attention, it may actually the least of the assaults mounted on detainees held around the world at our instigation.

    UNCAT specifically prohibits rendering detainees to situations where abuse is probable. But that’s what we did (and perhaps still are engaged in) for a very long time.

    I wish fervently that there would be a universal prohibition against states inflicting pain on people. Someday we are going to climb up out of the darkness.

  6. In response to my Cous’, DW, did you know ‘we’ are related to none other than Sheldon WHITEHOUSE (D-RI)?

    Incidentally, I tried sending a clip from this article with the WP link last night, twice, and it didn’t go through and again, just now, thinking it may have been because of the near blizzard we were having here last night. Maybe it’s just the planets ie Mercury Retrograde -anybody else care to weigh in? Or maybe it’s the link I’ve now left off. JT?

    Back to out discussion…

    Memo Offered Justification for Use of Torture
    Justice Dept. Gave Advice in 2002

    By Dana Priest and R. Jeffrey Smith
    Washington Post Staff Writers
    Tuesday, June 8, 2004; Page A01

    In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in President Bush’s war on terrorism, according to a newly obtained memo.

    If a government employee were to torture a suspect in captivity, “he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network,” said the memo, from the Justice Department’s office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on “necessity and self-defense could provide justifications that would eliminate any criminal liability” later.

    Two previous reports were issued on abuses in Iraq. One finds fault at the highest levels of the Pentagon, and a second focuses on military intelligence.

    The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.

    The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department’s detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.

    Bush administration officials say flatly that, despite the discussion of legal issues in the two memos, it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.

    Still, the 2002 and 2003 memos reflect the Bush administration’s desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.

    In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.

    In the Justice Department’s view — contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post — inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

    By contrast, the Army’s Field Manual 34-52, titled “Intelligence Interrogations,” sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.

    Human rights groups expressed dismay at the Justice Department’s legal reasoning yesterday.

    “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” said Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.”

    But a spokesman for the White House counsel’s office said, “The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions.”

    Mark Corallo, the Justice Department’s chief spokesman, said “the department does not comment on specific legal advice it has provided confidentially within the executive branch.” But he added: “It is the policy of the United States to comply with all U.S. laws in the treatment of detainees — including the Constitution, federal statutes and treaties.” The CIA declined to comment.

    The Justice Department’s interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

    The 2002 memo, for example, included the interpretation that “it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.” The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.

    “While we cannot say with certainty that acts falling short of these seven would not constitute torture,” the memo advised, “. . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.”

    “For purely mental pain or suffering to amount to torture,” the memo said, “it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” Examples include the development of mental disorders, drug-induced dementia, “post traumatic stress disorder which can last months or even years, or even chronic depression.”

    Of mental torture, however, an interrogator could show he acted in good faith by “taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience” to show he or she did not intend to cause severe mental pain and that the conduct, therefore, “would not amount to the acts prohibited by the statute.”

    In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group’s report called “exceptional interrogations.”

    Much of the reasoning in the group’s report and in the Justice Department’s 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.

    In a draft of the working group’s report, for example, Pentagon lawyers approvingly cited the Justice Department’s 2002 position that domestic and international laws prohibiting torture could be trumped by the president’s wartime authority and any directives he issued.

    At the time, the Justice Department’s legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.

    “Every flag JAG lodged complaints,” said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.

    “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way,” said a senior military attorney. “Once you start telling people it’s okay to break the law, there’s no telling where they might stop.”

    A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group’s report, prepared under the supervision of General Counsel William J. Haynes II, said that “in order to respect the President’s inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”

    The Pentagon group’s report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture “does not apply to the conduct of U.S. personnel” at Guantanamo Bay.

    It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. But it said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.

    The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.

    The Pentagon report uses language very similar to that in the 2002 Justice Department memo written in response to the CIA’s request: “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” the draft states. “In that case, DOJ [Department of Justice] believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

    The draft goes on to assert that a soldier’s claim that he was following “superior orders” would be available for those engaged in “exceptional interrogations except where the conduct goes so far as to be patently unlawful.” It asserts, as does the Justice view expressed for the CIA, that the mere infliction of pain and suffering is not unlawful; the pain or suffering must be severe.

    A Defense Department spokesman said last night that the March 2003 memo represented “a scholarly effort to define the perimeters of the law” but added: “What is legal and what is put into practice is a different story.” Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.

    Staff writer Josh White contributed to this report.

  7. watajob: With your sarcasm, you are most well-quipped. I can’t imagine what you mean! Thanks for the link, Fink!

    And now, here’s Harvey!

    p.s. I watched him and Andy Good defend Louise Woodward in the 1998
    “Nanny Case” in Boston. He and Andy are formidable Criminal defense attorneys.

  8. Not to mention US v Barker..

    Look, Mespo, you do have a valid point that I think we have to admit despite the intrinsic outrageousness of the situation.

    I have never been interested in going after the low-level
    “technicians” who actually did the torturing. They were “just following orders” and reasonably thought that the orders given them were lawful. That being so since DOJ was the source of the legal advisories that torturing was lawful, how could DOJ then investigate itself? And for what…bad lawyering?

    The key is the testimony that we will never hear. That of the preparers of the memos in question. It is my contention that they were given marching orders from OVP to produce a certain legal product and they compliantly did so. It is extremely likely that they knew the arguments in their product were spurious. It wasn’t a defect in research or craftsmanship, it was a results-driven enterprise to justify an illegal activity on orders from their superiors. The Lawyers Case does come to my mind…


  9. Sorry to be so snarky and willfully dense, Mespo. Let’s leave the Nuremberg Defense aside as needlessly inflammatory.

    Are you advocating entrapment by estoppel as the defense for the torturers? What do you make of US v Neville 7th Cir 1996?

  10. Well, I am back from a very relaxing weekend in very luxurious surroundings (age hath its perquisites) but missed the discussions here terribly.

    Patty C: we may be related albeit distantly as my ancestors also came over in the 1600’s and were members of the church Gov Bradford (First Congregational if memory serves) attended. My maternal grandmother always sniffed at DAR pretensions and refused to join. More lately though we have been variously judges, horse-thiefs, neer-do-wells (myself) and characters of all stripes. Like VC many of our lines came over in the more recent past and Ellis Island in-processed many of my line as well.

    As to Mukasey. I have to respectfully disagree with Mespo. Pragmatic practicalities are not an exemption from the oath he took. But I am unsure of the “governmental authority” defence Mespo cites: is this equivalent to a Nuremburg Defense? If it differs, how so?

  11. You are terribly presumptious, Mespo.

    Thank God I don’t have to ask your permission-for anything.

    So far, a case can be made that Mukasey has lied under oath while giving sworn testimony and, although I didn’t see the secret, rush, Friday afternoon, ceremony on 11/9, I presume he also when he was sworn into Office.

    On those bases alone, as I had repeatedly called for with Fredo, and now Mukasey, he should be disbarred and removed as non-qualified.

    He is not, nor were his previous predecessor(s), George Bush’s private attorney.

    He works for us and he is not doing doing his job, with regard to proceeding in a meaningful way with the various criminal investigation matters still pending.

    The President et al did not have the right to break the law nor to ask government lawyers, at our expense, to assist him et al in breaking of the law or in doing an end run around the Constitution. Any legal opinions to that end were ‘made up’. Any argument stating that acting on their positions was “the law at the time” is, likewise,’made up’.

    Nobody told me that – I made it up just for you!

  12. Patty C: No need to get so testy. You can have your ideals, but your vituperative screeching against opposing ideas does not serve your argument well. Regardless of your ancestry, your arguments have to stand on their own merit. To date, you’ve proved to me that you are passionate but not particularly sophisticated in your reasoning. If you truly believe that Mukasey has ill motives, prove it. I offered you a perfectly reasonable explanation that he may be boxed in by the governmental authority defense, and his desire to protect the DOJ. However, you assume that he is evil and acting in some nefarious way to subvert your liberties. If so, show me some proof beyond your strongly held belief. You remind me of the Evangelical crowd who are certain of the rightness of their position because some book or leader tells them so and that we who question that belief are either dumb or “on drugs.” By the way, I was referring to judicial pragmatism (as opposed to originalism) to which both Madison and Jefferson both clearly subscribed. I was not referring to the philosophy of Charles Sanders Peirce,and apologize for the confusion.

  13. Mespo:
    Perhaps you should be on drugs 😉

    My heritage has a lot to do with me, obviously. You implied I that my ideals are nonsense and that I was living in a fantasy world.

    “…Patty C: No drugs, I am just not swept up in any idealistic nonsense. Your world may be the better place, but we live in this one and no AG is going to hang his President out to dry and this guy is no different….”

    I am not a Philosophy buff, but I am pretty sure the founders were not pragmatists – in the extreme. They knew what the truth was based on their experience. The Constitution was not the merely the product of wishful thinking. They were passionate people who debated and struggled – long and hard.

    For your information, as a philosophical movement, pragmatism didn’t even come into being until the late 1800’s – after the Constitution had been around for a hundred years.

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