Mukasey’s Comment on the Surveillance and Torture Program Leads to Congressional Confrontation

160px-john_conyersmichael_mukasey_official_ag_photo_portrait_2007160px-jerrold_nadler_official_109th_congress_photoAttorney General Michael Mukasey has made new comments excusing both the unlawful surveillance program and the torture program. In his most recent statement, Mukasey dismisses the need for a pardon since “[t]here is absolutely no evidence anybody who rendered a legal opinion either with respect to surveillance or with respect to interrogation policy did so for any reason other than to protect the security of the country and in the belief that he or she was doing something lawful.” House Judiciary Committee Chairman Rep. John Conyers, D-Michigan, and Civil Liberties Subcommittee Chairman Jerrold Nadler, D-New York were irate and dashed off a letter demanding an explanation.

Conyers and Nadler are two democratic leaders who would take an aggressive stand on these programs if they were given free hand. They state: “We are troubled by the breadth of your statement and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law,” the congressmen wrote. They noted the much publicized internal administration debates over the policies. Our greatest concern, however, is that your statement appears to be prejudging numerous ongoing investigations.”

It is important to note that these investigations do not include a serious criminal investigation or impeachment element, which have been taken off the table. The programs are being investigated by the Justice Department’s Inspector General’s office and there is a special counsel on the torture program. Nevertheless, it is highly improper for an Attorney General to comment on the subject of such investigations. Of course, it is a bit strange given this Administration’s signature “no comment due to pending investigations” line in scandals like the Plame affair.

What is most galling is that Mukasey has never answered the question on torture put to him during his confirmation hearing. After claiming (implausibly) that he was not familiar with the term waterboarding, he then (after it was defined for him) refused to answer the simple legal question of whether waterboarding had been defined as a crime. Now, while he has refused to admit that waterboarding is a crime, he feels perfectly comfortable in dismissing any notion of a pardonable crime.

Moreover, the Justice Department routinely rejects claims from targets that they had a good reason to commit a crime or that they did not know that an act was criminal. The fact that these people thought that they were helping the country in the commission of a crime is no defense. Many criminals, including war criminals, insist that they are patriots.

What is particularly exasperating is that, after blocking any criminal investigation, Mukasey is now undermining even a non-criminal investigation. The reason is obvious. History will record that Mukasey, who has portrayed himself as independent and utterly faithful to the law, worked to protect the President and his Administration from a crime hiding in plain view. It is a poor legacy — made worse if these investigations show that the programs were unlawful.

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14 thoughts on “Mukasey’s Comment on the Surveillance and Torture Program Leads to Congressional Confrontation”

  1. New here, but will return again. Having heard your comments to Olbermann regarding Cheney’s admission of torture authorization, I just want to say that we, the public, have been writing, calling, faxing, and emailing our congress people and newspapers to exhaustion over 8 years and in the millions on Cheney/ Bush crimes. The public is not standing by. The media is blocking our voice. The congress is largely ignoring our voice. When you can put the same information you gave Olbermann out on Limbaugh or Hannity show, you might reach the few people left who have not been aware of this and who have not raised a voice for impeachment or prosecution. Also the Washington ‘bubble’ seems to be another reality altogether. Any help you can provide in this would be soooo appreciated! So, thank you and good luck.

  2. Mespo,
    I apologize for getting to this thread so late, but I was out of town. I agree with you that Mukasey may be setting up the ground work for a defense for the possible indictments that may be coming. (I hope) I was never a Mukasey fan from the outset. When he played games on whether waterboarding is torture, I knew he was a “playa” in Buddha’s terms. His appointment of Dannehy may be a good one, but I will hold judgement until her full work is done. Jill, “heretopias of deviation”?? Wow. I agree with what it means being applicable to the Bush regime, but that phrase is just too hard for this old man to print, let alone say!

  3. mespo,

    The Dannehy appointment is part of what sits badly with me, but not for why you may think. I have no issue with her, but take her appointment and other similar acts and add them to the (as you call them) disappointing acts and statements? After watching the Gonzo Explosion of Incompetence, how could the GOP recover without someone good at PR, damage control and deflection? I’m not sure what picture you get from that but I see a man still doing the bidding of evil while being competent enough to create both cover and flack for his personal position. He’s a playa, dawg! A real AG would have Cheney in cuffs by now and a lot of oil execs puckering up.

  4. Buddha:

    Mukasey is a puzzle to me. He certainly fits the bill as a Bush apparatchik but he does appoint ferocious prosecutors like Nora Dannehy to investigate Administration malfeasances. I was one of his few backers upon appointment, but I admit his decisions, at least the public ones, are for the most part disappointing.

  5. mespo,

    Dead on analysis. Mukasey is a fascist tool just as much as Gonzales. The bad thing and the big difference is that Mukasey is competent. His needs to be the first head to roll at Justice. The Morons In Washington just don’t get that letting Bush/Cheney escape justice ends in a rapid unraveling of what law remains once the Constitution is proven to be just a “goddamn piece of paper” and/or violence in the streets.

    They are too busy eating cake to notice they are about to choke on it.

  6. mespo,

    That’s a good call.

    Usually they get nervous when anything about torture and war crimes shows up on the blog and they start posting on other threads to draw attention away from these types of discussions.

    An interrogator going by the pseudonym, Matthew Alexander, was on Talk of the Nation, yesterday, Dec. 4. He makes a very strong case against torture, both for practical and moral reasons.

  7. So the answer is to crawl in a hole and not listen to teachers or the media? Not sure I understand what to do.

    The simple fact is the information to make an informed decision in an election is not available. They all tell us what they want us to hear. How often have you seen a newscaster telling us what someone said WHILE a video of them talking is seen in the background? It’s stupid. Had we just let Mr. Bush ramble on unaided he would have impeached himself.

  8. “I’m baffled as to how they can grow up in America, be part of the American legal and governing systems and still spout such utterly un-American nonsense and seeming to believe it.”

    I agree with your entire point. As to the quote from you above though, while I share your bafflement a possible explanation occurs to me. In the last 3 decades, beginning with Reagan’s election, the conservative movement has launched a culture war front attacking the teaching of civics/social studies in our schools. I saw this in terms of my own two daughter’s public school education and its glaring lack of teaching children about our history and Constitution. To add to this we lived in what was considered an excellent school district. Conservatives ran for local Boards of Education and pushed through curriculum changes that downgraded these studies and turned them into pablum.

    Co-incident with that all three TV networks were taken over by very
    Conservative Companies: ABC = Cap cities, NBC = GE and CBS = Viacom
    They all put their news divisions under their entertainment divisions. TV News became another entertainment factor and an effort was put forth to successfully “dumb down” the news. With TV News becoming the main source of news for Americans, most people simply didn’t get information that would offset their lack of civics based education.

    Lawyer’s, being people like everyone else may have received excellent educations, but their means of processing that education was filtered through the biases of public school and TV.

  9. I don’t think Mukasey is daft. Sounds to me like Mukasey is setting up a “public authority” defense to any criminal charges for all government agents involved. This “superior orders” or “Nuremberg” defense is inapplicable to determinations of guilt for war crimes under international law by virtue of the London Charter of the International Military Tribunal, but it would protect defendant’s under US law. If you want to read more about that defense to criminal liability check out this web page from the DOJ’s Manual for US Attorneys:

  10. ‘Heterotopias of deviation’ are institutions where we place individuals whose behavior is outside the norm” (widipedia)–a good place for the entire cheneybush crowd. (I was just subjected to this po-mo word, but it works for here!)

    Just as they fixed the intelligence around the decision to go to war, legal opionions were fixed around already formed decisions to violate the law.


    The Orwell conversation was great!

  11. I wonder if AG Mukasey has private conversations with the portrait of George Orwell that adorns his office wall at the Justice Dept. It is inconcievable to me that the head of our Justice Dept. shows such a lack of interest in the law and uses the lamest of excuses to deflect responsibility. What has this man actually done since being confirmed? Besides being the White House’s Firewall 2.0

  12. rcampbell,

    That statement is false to begin with. All the evidence points to cheney having prior defined illegal policies which he then found lackies to “justify”. Even in his crowd he had to go through several people who wouldn’t agree that the illegal was legal until he found the stooges ready to write for him. These lawyers and other minions weren’t taking one for “TEAM AMERICA”. They were working hard to deliberately undermine our laws. Wasn’t it addington who said something like, one more terrorist attack and we’ll be rid of that pesky law (meaning FISA)?

    If a lawyer helps in the commision of a crime they are not acting as an atty. they are an accomplice. And the WH uses leaks to suit their purposes and only their purposes.

  13. >“[t]here is absolutely no evidence anybody who rendered a legal >opinion either with respect to surveillance or with respect to >interrogation policy did so for any reason other than to protect >the security of the country and in the belief that he or she was >doing something lawful.”

    Isn’t there an old saw that covers this? Might be something about the “road to hell…”. This is a truly frightening look into the collective twisted mind set of this administration. I’m baffled as to how they can grow up in America, be part of the American legal and governing systems and still spout such utterly un-American nonsense and seeming to believe it. January 20 just can’t come fast enough!

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