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. Mespo: Very much like you, I am always trying to map a logic as to why certain people do particular things. In previous posts – Patty C. provided a link as to what, in fact, may have been Fienstien’s motivation in joining with Schumer in an unusual duet. Even the most reasoned discourse will reveal that there’s a high likelihood that there’s a Duke Cunningham in the woodpile.

    As for my family heritage – they stepped off a boat, set foot on a rock called Ellis Island and they once took me there in a Plymouth.

    They are some of the greatest Americans that have ever lived.

  2. Patty C: I really don’t know what your heritage has to do with it since most of the founders were pragmatists in the extreme, but I applaud your background. What I am trying to say is that railing against the power structure may make you feel better, but it will do little to change the dynamic. I think our efforts are better spent analyzing the situation and persuading our friends and colleagues that this situation is neither “normal” nor Constitutional. The way to do that is with reasoned argument not wild-eyed animus directed at the opponent. Please remember that this Administration was elected and then re-elected, apparently to our mutual consternation. We do have some convincing to do to make sure it won’t happen again. Your comment about Mukasey’s sponsors if precisely why I believe he is attempting to do the right thing given the parameters of his political world. Why would Schumer and Feinstein, both outspoken critics of the Administration, back him unless they believed he could reverse the course at DOJ? I have not seen their criticism published and must believe that they would be the first to proclaim betrayal if they thought that is what is happening.

  3. Mespo, in response:

    “…I agree his recent statements are troublesome, especially his refusal to enforce contempt citations for those ignoring Congressional subpoenas, but I will withhold judgment until I see more…

    …As such, Mukasey may feel that DOJ, which is clothed with the actual authority to render such opinions, is a witness in the caseand must ethically stand down from any investigation.”
    First of all, you (nor I, for that matter) have no idea what his intentions were in taking the job. We have an upcoming election and he has a lot of political connections already – including, now former Presidential candidate, Giuliani and nominator, Sen. Schumer (D-NY)
    and supporter Dianne Feinstein and by association, her husband, Richard Blum.

    Secondly, having been subjected to Fredo’s nonsense you must be a glutton for punishment since ‘this guy’ has been jerking everybody’s chain for three months already.

    If he is an honorable man and/or concerned about being challenged, ethically or otherwise, he is then/now compelled to appoint a
    Special Prosecutor – which is what we have been calling for since before his arrival.

    By the way, I am absolutely swept up in idealism and proud of it
    -have been my entire life. My ancestors came over on the Mayflower and fought in the Revolution. One, William Bradford, was one of the first Governors of one of the original 13 Colonies-Massachusettes, which included MA,ME,plus areas of VT,and upstate NY.

    Put that in your pipe and smoke it, as they say.

  4. This has been a most invigorating discussion. It seems to me that I’m nodding my head as I read most of the comments. And while I’m disturbed at the abridged reach of Congress – they have also been willing participants in the shift of powers and that may be the most disturbing of all. Even as a Democratic majority, they have acted like so many neophytes in politics by not using skillfully using the tools provided by the House and Senate in a manner consistent with a carefully considered strategy.

    Congress, as a result of the McCarthy hearings, clearly laid low for a number of years because of the ostensible misuse of their power and mob style tactics, obliterating freedoms and inspiring retribution and vigilantism. Now the antithesis is playing out, whereby Congress appears not only to be neutered, but seemingly … under their own knife. And, I agree with others here, this willing deconstruction of American National Government is most disturbing. That’s precisely why I also signed Rep. Wexler’s petition, if nothing else, to send a message to the Democratic leadership. I’m convinced though, that we won’t make any significant headway until there is a viable third party to disrupt the political machinery, and re-focus our elected and appointed leaders to perfecting our representative government.

  5. Vince & Patty C: As a final thought, I believe that the Administration and hence Mukasey are relying on a governmental authority defense to deflect this investigation, i.e., that the defendants (in this case the CIA interrogators armed with an opinion from the Office of Legal Counsel) knowingly committed criminal acts (such as the water-boarding) but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. As you may know, this defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987. As such, Mukasey may feel that DOJ, which is clothed with the actual authority to render such opinions, is a witness in the case and must ethically stand down from any investigation. Perhaps Professor Turley can address this issue if he has the time or inclination.

  6. 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. Instead, what men of honor have done is to either resign or to effect the outcome they want while seeming to give the powers that be what they want. I give you John Marshall in Marbury v.Madison as the archetypal example. Mukasey would not have taken the job if he believed he could do no good at DOJ. He certainly didn’t do it for the political power since he knew this was a lame duck administration and Bush’s popularity is right up there with Jim Jones and Satan. I prefer to see how he handles the Congress over the next few months. I agree his recent statements are troublesome, especially his refusal to enforce contempt citations for those ignoring Congressional subpoenas, but I will withhold judgment until I see more.

  7. I agree with RCampbell that the right of Congress to maintain oversight of the Executive Branch is at stake here. Another questions that could be asked of Mukasey is this: If President Bush decides that the Iraq War and the War on Terror make it mandatory for him to declare martial law, will Mukasey state that it is illegal for Bush to do that? Or will he just stammer and go in circles. If this is what a Federal Judge will do to become Attorney General, what will they do to become a Supreme Court Judge? I think we already found that out with Alito and Roberts. Maybe the next President and Congress need to pass a Special Prosecutor law again and force these guys to take the 5th right on CSPAN.
    I know it is unlikely, but can’t a guy dream a little?

  8. Having signed Cong. Wexler’s petition for impeachment hearings on the VP, I received an update email today from the Congressman. It stated in part:

    “During hearings in the Judiciary Committee yesterday, I told Attorney General Michael Mukasey that I called for impeachment hearings because of the stonewalling and blatant abuses of the Bush Administration. He responded by stating that he will NOT enforce a contempt of Congress citation against Harriet Miers and White House Chief of Staff Josh Bolten for refusing to testify before Congress. The video is here: http://www.youtube.com/watch?v=B7M9sjRLCtQ

    Alberto Gonzales may be long gone, but the Bush Administration continues its executive overreach with the new Attorney General.

    We can debate the need for Impeachment hearings. We can argue its effects on the election or our agenda. But one thing is abundantly clear:

    If Congress’ right to require testimony is undermined, then our country’s leaders – Democrat, Republican, or Independent – will be immune from accountability”

    It’s that last line that makes my skin crawl. No one in Congress seems to care—or they care very much and WANT it that way which is even scarier.

  9. Are you on drugs, Mespo?

    He, like the President who ‘elevated’ him et al, has to answer to us, as in We, the People, most of whom are adults and patriots living west of the Distrct.

    Moreover, anyone with a modicum of legal training, most of all a former federal district judge, knows that.

    In fact, he took an Oath – swearing to uphold the Constitution of the United States.

  10. Vince:
    I agree that your way would be the better course, but like most Repubs he has to answer to the far right crowd and he obviously has loyalty to the President who elevated him. I just refuse to believe that a federal judge would subvert his office, and tarnish his legacy that way. Any one of us with a modicum of legal training knows his arguments are comically circular and would never past Constitutional muster, so I have to believe he feels that his best course is to insulate the DOJ from further attacks of bias and incompetence. I really hope I am correct but I wouldn’t lay you odds. If you want more adults and patriots you have to look to the west of the District.

  11. Okay Mespo – You sound very reasonable in your assessment. How though, would he have publicly have stated the right reasons?

    Personally, I would have been very pleased if he had refused to answer the question of whether water-boarding is torture, citing the obvious political context of the questions, and the dramatic effects his answers could have on the American taxpayer. Say it in the open. Tell them … with the TV cameras running that you weren’t going to permit their particular politics to further harm the US. That stopping suspected torture was a much more important issue than placing blame right now.

    Now that would have clearly put the ball in Congresses lap to act like adults and patriots.

  12. I think Mukasey may have played it right but publicly stated the wrong reasons. No one would believe an investigation by the current DOJ anyway, so why waste the time. Get a special prosecutor in there and let the fur fly. Mukasey may have done everyone a favor by taking this position since he knows it is Constitutionally suspect and will require the next Congress and/or Administration to do something. He can’t say that a DOJ investigation would have no credibility so why not put the ball in Congress’ court.

  13. Let’s not forget the charming Democratic leadership that were the cheerleaders down the Yellow Brick Road (more like Doyle’s Brixton Road) to swiftly have this highly acclaimed, credentialed and clearly partisan player-jurist – fill the gap as it were, even though it was clear that he promised his employer to lie over a nice glass of Kool-Ade, in order to forestall the potentially litigious villagers from storming the White House gates.

    Chuck Schumer, Diane Fienstien, deal brokers at large, wise as wisdom teeth, should also be extracted. At least 100 years of literary inspiration came from Marie Antoinette’s invocation of this same type of hubris – as removed from the vision of the people as it is removed from central themes of their respective oaths of office.

    The only thing missing from this theater is a revival of the Warren Commission to provide some chuckles, if that were at all possible.

  14. Fundamentally dishonest. And the chief law enforcement officer of the land. That’s what it has come to.

    Further, Mukasey said that he would NOT enforce any contempt citations Congress might issue in respect to non-appearance of subpoened Administration officials.

    As I said weeks ago, the DOJ has transformed into a defense law firm for the Executive.

    Meanwhile DOJ-approved political persecutions (for want of a better descriptor) are ongoing in Alabama and elsewhere.

    If there is anyone left on the bus who does not believe that impeachment is the only proper response, please reconsider.

    Don’t let outrage-fatigue numb your intellect.

  15. I agree with rafflaw – the next President needs to investigate this since it’s obvious the current Congress won’t.

    And when that Special Prosecutor/Investigator is appointed – please let it be Jonathan Turley!

  16. This News Item Just In:

    President Bush, in an Executive Order, states that all Senate confirmed
    appointees of his administration will continue on throughout the next
    administration. Once confirmed, he stated, they cannot be removed from
    office….the President stated that the Justice Department staff carefully researched this interpretation of the law and confirmed that
    this was an appropriate and legal action.

    More on this at 11:00PM here at Fox News.

  17. I would like to see both Hillary Clinton and Barack Obama go on the record that they will ban any and all of the Bush Administration’s so-called “enhanced interrogation” techniques if they are elected in November. Then both candidates need to be asked if they will, as President, push for criminal charges on George W. Bush for ordering torture in violation of U.S. and International law.
    I have been calling for the impeachment of both Cheney and Bush for months and now I think we need to add Mukasey to that list. He has committed high crimes and misdemeanors by refusing to honor his oath of office by allowing a blantant violation of the law. I would think that he should also be investigated by the appropriate Bar Association for ethical violations of knowingly ignoring obvious illegal activities by the President and other administration officials.

  18. …”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.”

    “Clueless” is an apt description, at this stage. Perhaps it’s time to send out a sample of the ever popular Senate Bean Soup for Toxicology Lab analysis.

  19. This is, of course, outrageous, unlawful and a large middle finger thrust into the air to the entire American population. If, as the good professor suggests and unfortunately there is every reason to suspect he’s right, the Democrats are complicit in this travesty, then a pox on all their houses.

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