Despite confirmation of waterboarding by the Administration and the existence of a torture program, Attorney Michael Mukasey continues to refuse to acknowledge that waterboarding is a crime and has blocked any criminal investigation that would implicate the President in the commission of a war crime. Now, Democrats are heralding an internal investigation that promises nothing beyond a low-grade ethics review with no likely action against individual lawyers.
At the request of Democrats (including Democratic Sens. Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island), the Justice Department’s Office of Professional Responsibility (OPR) has opened an investigation into the role of lawyers in approving the torture of detainees. The OPR has long been viewed as a paper tiger, which is most often used to create the appearance of investigation to clear its own attorneys. The only value of an OPR investigation would be to give the appearance of investigation without any substantive action.
While Durbin and Whitehouse have been more active than most of their colleagues (who refuse to even utter the word “torture”), leading democrats have worked behind the scenes to block any serious criminal investigation into either the torture or unlawful surveillance programs — which both Democrats and Republican members knew about for years. For a prior entry, click here.
The suggestion of an internal investigation as a substitute for a criminal investigation is laughable. President Bush intentionally surrounded himself with lawyers and law professors like Steven Bradbury, Viet Dinh, and John Yoo who held extreme views of executive powers. They told him what he wanted to hear and gave him the legal cover to claim legal authority. Mukasey used that advice to refuse to allow any criminal investigation into the torture program under a classic “he-was-just-following-advice-of-counsel” defense for the commission of a war crime.
On Aug. 1, 2002, lawyers like then-Assistant Attorney General Jay Bybee wrote the infamous torture memo for then-White House Counsel Alberto Gonzales, who blindly signed it. Bradbury recently used language that mirrored aspects of that memo in terms of painful techniques that do not cause permanent or lasting injury.
Notably, Mukasey himself testified implausibly under oath at his confirmation that he did not know what waterboarding was. When he was told, he still refused to acknowledge that international and domestic courts have long defined waterboarding as torture. Democratic Sens. Chuck Schumer and Dianne Feinstein saved his confirmation and allowed him to avoid answering the question. Once in office, he then promptly refused to answer the question at all. To state the obvious (that waterboarding is torture) would trigger an immediate criminal investigation implicating the President himself.
Not only is Mukasey refusing to answer this question before Congress, he is seeking the promotion of one of the lawyers responsible for the bad advice, Bradbury. Click here
Is an OPR review going to go after Mukasey’s continued obstruction or Bradbury’s role? I doubt it. The more likely result is some mild rebuke with no action taken against any lawyer (a classic OPR response to such scandals). Even if OPR surprises the legal world with concrete sanctions, it would only be used by members of Congress and the Administration to distract from the fact that no serious criminal investigation was allowed in either the legislative or executive branches.
Even the statement by Durbin appeared to focus on establishing a political point. He noted that the “answer was preordained and the department was driven by politics and obedience, not law and independence.” It is obviously an important question, but what if OPR came to the same conclusion? These officials will still have succeeded in committing federal and international crimes without any personal penalty. In some ways it is worse for the Justice Department to create a record of dealing with such crimes as simply breaches of professional judgment rather than crimes.
The collusion of Congress to avoid criminal investigation of the torture and unlawful surveillance programs challenges many of the assumptions of the Framers in creating the tripartite system. They assumed that there would be people in either house who would never allow a president to commit criminal acts without a check and balance from the legislative branch. Our modern legislators have defied such logic. For personal reasons, they have found it entirely inconvenient to force a confrontation over these criminal programs — working not just to block serious investigations of these programs but to actually extend immunity to the telecom companies who assisted in the unlawful surveillance program.
This is why the OPR investigation is like salt in the wound for civil libertarians. It is like witnessing a bank robbery and proudly proclaiming that you might issue a speeding ticket to the get-away car. At some point, this political posturing becomes a insult to the intelligence of voters. It is certainly an insult to our constitutional traditions.
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