Mukasey and the 'get out of jail free' card
By Steve Benen Thursday Feb 07, 2008 3:34pm
Attorney General Michael Mukasey has been kind enough to share some fascinating insights with the House Judiciary Committee on an administration that believes it can immunize itself from law breaking. Seriously.
Committee Chairman John Conyers (D-Mich.) asked if Mukasey was prepared to prosecute admitted instances of administration-ordered torture. No, the AG said, because the Justice Department decided it was legal.
In the same hearing, Rep. Jerrold Nadler (D-N.Y.) pointed out that the president had authorized an unlawful warrantless wiretapping program, and inquired as to whether this was an example of the president breaking the law. Mukasey said it couldn't be against the law, because the Justice Department decided otherwise.
David Kurtz explains exactly what Mukasey argued before lawmakers today.
We have now the Attorney General of the United States telling Congress that it’s not against the law for the President to violate the law if his own Department of Justice says it’s not.
It is as brazen a defense of the unitary executive as anything put forward by the Administration in the last seven years, and it comes from an attorney general who was supposed to be not just a more professional, but a more moderate, version of Alberto Gonzales....
President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.
Quite right. I’d only add that this entirely accurate description of the administration’s breathtaking abuse of power is the natural conclusion of the Bush gang’s self-immunization philosophy.
Login or Register to post comments.
WTF?! Does this stuff just never quit????
It's rather complicated. Before saying anything, read this.
It's official.
We have become that "Crackpot Dictatorship" we are always struggling so hard to bring Democracy(tm) too!
I weep for my country....
Don't feel sorry for the Dem Senate one bit. They approved him, live with it.
Congress won't do damn thing except talk shit.
Pelosi and Reid must be replaced with someone who will do something.
At some point, the colonists realized the Red Coats weren't bulletproof.
#5:
Exactly right. They're going to ask him nicely to stop, and when he refuses they're going to agree to disagree.
How unpopular does the president have to be before congress feels emboldened to call him on this nonsense? What political repercussions are they so afraid of?
That was so awesome how the congress just let this guy slide by... I remember reading various places (maybe MSM... don't remember) how this guy was OK and was going to be WAY better than Gonzo... HAHAHAHAHAHAHAHAHAHAHAHAHA
...
...
HAHAHAHAHAHAHAHA!
I COULD HAVE TOLD YOU THAT HE IS JUST GONZO II OR GONZO LITE.
JTM @ 2:
BULLSHIT
As to Benen's leader: please provide the exact quotes where Mukasey said that a positive opinion from the OLC on an issue implied that it "couldn't be against the law." By my recollection, Mukasey was never that clear, at least not on this point. Instead, Mukasey said that he couldn't prosecute anyone for doing something that the OLC opined was legal. That's a huge difference. Your way of saying it implies that the OLC could change something from illegal to legal. Mukasey never said anything like that. It's his assertion that an OLC opinion that something is legal means the entire DoJ will, from then on, say the same thing. Nothing was converted from illegal to legal; an opinion from the OLC implies that, at least for the DoJ, it was legal the whole time.
tjb @ 9:
Thanks for the intelligent discussion. Anyone else?
If the President does it, it's not illegal.
Thing is, we let him get away with it, and therefore we prove him right. If there's a law on the books but no one enforces it, it's not really a law.
Impeach or go home, Congress! Since you do neither, it's at the citizens' feet now.
When the president disbands the congress then just maybe traitor NANCY will find the time to make some room on the table.
He's not gonzo lite, he's the robo-AG 2000.
Unlike the sleazy little alzheimer's pretender who wheedled and whined and squirmed and outright lied, this one just tells it like it is.
"Are you going to prosecute wrongdoing?"
"No."
So there's not even a pretense of following the rule of law anymore.
It's the shrub co. brand justice dept. from now on and if you don't like it why don't you try bringing it to court? LOL! Hilarious.
What's his buddy Shumer say about this?
Jo @ 15:
Yes, I will be interested to hear what Schumer and DiFi say now.
12009
Oh my! Oh my! Everybody is up in arms. Everybody is full with indignation. Everybody is full with distress. So, who gives a rat's ass.
Nothing is going to happen. In my opinion, the reason nothing is going to happen is because if the Democrats take over this shitty Government we have now, they might apply the same procedures these mothefuckers are using right now. And in my book...my fellow Americans, that's fine and dandy.
Mukasey is a good little nazi.
So how much is your soul worth? Exactly one position in a failing administration. If only this asshole was around for Nixon. Impeachment why? The president declared it legal to spy on Democrats. Silly goose.
I have come to the conclusion that another tiresome rant about impeachment will only bring on Paul in LA to tell me, again (and endlessly), what a total waste of time it is and how NancyPants has so many better things to do and the senate will never convict anyway and it is divisive and will hurt dems in the fall, so I wont. Instead I will urge you all to send emails of congratulations to the Senators who voted to confirm another AG who believes that the preznit does not have to obey the law - attaboys all around! - And lets all send MizzNancy some nice lace hankies for her to twist when she explains, again, that she wont explain why, no matter the crime, impeachment is off the table (oh, and don’t forget a few head-covering hankies for brave Mr. Conyers, too).
JTM @ 16:
I'll take a wild guess:
"We are very disappointed by the attorney general's position and strongly urge him to reconsider."
Heh, does this really come as a surprise? Seriously, to anyone, especially any of the Democratic Senators who voted to confirm this guy
Here we see an illustration of that most difficult problem of a free country and good government: Who will police the police?
It is the executive branch that is in charge of enforcing the laws. It is a good thing that Congress is not itself allowed to enforce the laws it writes. Separation of powers is a good thing. A great thing. And for an executive branch to have discretion about refusing to enforce laws in certain instances is a good thing too. But, oh, what do to when it is the executive branch itself that is breaking the law?
The framers had an answer: Impeachment. It's part of the checks and balances that makes the separation of powers viable. When the executive branch itself is so clearly violating the law, the legislature does get to enforce the law against it.
When the legislature refuses to do this -- either for political expediency, or because the Senate will effectively practice jury nullification to protect a party member -- the government is broken. It marks a Constitutional crisis.
That's what the last 7 years have been: One long Constitutional crisis. A Court told a state to stop its vote counting. The president that ascended as a result claims unitary authority to do whatever the hell he wants. And Congress refuses to do anything about it but whine.
HDon @ 6:
Bears reposting...
Happy Chinese New Year of the Rat! This is good read all the way to the end of the story.
A woman walks into a curio shop in San Francisco. Looking around at the exotica, she notices a very life-like, life-sized bronze statue of a rat. It has no price tag, but is so striking she decides she must have it. She takes it to the owner:
"How much for the bronze rat?"
"12 dollars for the rat, a hundred dollars for the story," says the owner.
The woman gives the shop-owner 12 dollars.
"I'll just take the rat, you can keep the story."
As she walks down the street carrying the bronze rat, she notices that a few real rats have crawled out of alleys and sewers, and begun following her down the street. This is a bit disconcerting, so she begins walking a little faster. Within a couple blocks, the group of rats behind her grows to over a hundred, and they begin squealing. She starts to trot toward the Bay.
She takes a nervous look around and sees that the rats now number in the thousands -- maybe millions -- and they are all squealing and coming toward her faster and faster. Terrified, she runs to the edge of the Bay, and throws the bronze rat as far out into the Bay as she can.
Amazingly, the millions of rats all jump into the Bay after it, and are all drowned.
The woman walks back to the curio shop.
"Ah ha," says the owner, "I'll bet you have come back for the story?"
"No," said the woman, "I came back to see if you have a bronze Republican."
JTM @ 11:
Yes - permit me to bloviate a bit:
There seem to be two arguments in play here - one is that it even if it is unlawful, you can't prosecute someone for doing it because you told them it was. The other is that, even if you could, there is the barrier of "reasonable reliance on lawful authority".
As to the first - it seems to be a variation of the classic legal ethics problem involving the attorney-client relationship. I would argue that, at the point that you allow someone to engage in conduct that a "reasonable person", standing in the shoes of the advice giver, would know is unlawful, you have ceased acting in a legal capacity and have instead become a co-conspirator in a criminal scheme. An AG should not be able to "self-immunize" simply by weilding the shield of his office.
As to the second, it sounds like a variation on the "I was just following orders" defense.
Didn't another "George" in 1776 try to get away with similar antics? Maybe it's something about the name.
Circle jerk I call it.
If it's OK for a President to actually pardon a convicted criminal, for offenses committed FOR the same President, well, see no difference here.
We've come back to know Law Breaking time and again and nobody (who can do anything about it) gives a shit.
Will Obama/Clinton have the guts to send Bu$co and Cheney and their ilk down to Gitmo for a little "alternative" interrogation before they declare waterboarding off limits and close the entire Cuban base down?
There is one recourse: impeachment. Maybe, since there is little stomach for the real target- Bush/Cheney they should start with Mukasey. But to let yesterdays testimony stand unchallenged is to put an imprimatur on the new imperial presidency. This should be bipartisan. The stakes are so high that maybe the two parties can just concentrate on the task of conserving our democracy. If they impeach Mukasey, then warn Bush that he's next, maybe it will be enough.
WTF is it going to take for Congress to DO THEIR FUCKING JOBS??????
Are we gonna have to wait for the shrub to declare martial law before something is done with this out of control administration?
Sooo...
If Bush goes to someone in the DoJ and asks, "Can I murder someone?" And the flunky says, yes sir, of course you can! And then Bush goes out in public, pulls a gun and shoots someone, in front of the cameras, the Secret Service, and God, he can't be prosecuted?! Because someone at DoJ told him so?
So then, it's the DoJ making our laws, not Congress, not the people, and not the courts interpreting them.
Well, I'm glad we got that settled.
This is getting out of hand. Bush can nullify any law Congress passes with a signing statement, and he's using the Justice Department to interpret what is and is not lawful. Maybe getting out of handisn't strong enough terminology. Any suggestions?
JTM:
On the issue of actual prosecutions of someone at the CIA, I agree that it's complicated. The notion that bothers me is the manner in which the exec wants to rebuff prosectutions. They want the all descisions to be made by the exec. The legislature doesn't write the laws, they selectively do via signing statements. Courts don't interpret the law, the DOJ does. I just see no check on executive power right now.
garcia @ 18:
Be careful what you ask for.
When the president disbands the congress then just maybe traitor NANCY will find the time to make some room on the table.
It would appear that he already has and we now have a Monarchy ( but with not even a Parliament). How on Earth did we allow this to happen to our Country and how do we apologize to our kids?
There's at least a third argument, which is what Lederman says Mukasey is using.
You first have to accept that whether or not waterboarding is legal is an open question, or, at a minimum, that some people believe this. If you can't even wrap your head around that idea -- and I, too, have problems -- then move on to the next post. If it helps, I'll refer to waterbaording as W from now on.
OK, so there's a question of whether W is legal. So someone asks the OLC. The OLC says it's OK. That means that the entire DoJ says it's OK. That means the DoJ can't investigate anyone for doing W, because it's illegal to investigate someone for doing something that is legal. Ergo, as Mukasey said yesterday, he cannot investigate the CIA for waterboarding in 2002 and 2003.
What's screwed up here is having an OLC inside the DoJ. That's a breach of Separation. If the OLC never does anything stupid, you don't notice this problem, but the current Admin not only got the OLC to be stupid, but to be brazenly outrageously stupid.
So basically he is bush's lawyer, judge and jury. I thought the title was Attorney General of the United States. They need to change the title.
I have a bad case of anger fatigue today.
Proud2bHumble @ 24:
I loved it too.
It never ceases to amaze me that people actually expect the Bush/Cheney crime family to obey the law!
What else would you expect from a group of people who have done nothing BUT break the law ever since they illegally invaded and occupied the White House.
The greatest proof of their criminal actions is the fact that since invading Afghanistan that country has hard record opium production. If you can't fight a war on drugs with a full-on real life army, then you ain't tryin'.
Bush the Liar @ 5:
Not to worry everything will be fine. Patrick Leahy is going to write another stern letter!
If the American Bar Association doesn't move to disbar Mukasey, they're not doing their jobs either.
What say we write them a letter?
IM...peachment anyone?
he's probably scared.
That defense didn't work too well at Nuremberg.
When Bush disbands Congress and suspends the constitution, that'll be legal too so long as he gets a memo from the DOJ.
Is there a jail big enough to hold every criminal in the Bush regime? Maybe it would be easier to just build a prison wall around the White House?
This so far off topic that it just fits perfectly.
Scy @ 4:
Unfortunately we all have to live with it, Scy.
Pelosi and Reid deserve to rot in hell for enabling this bullshit.
If this administration had followed the law, they couldn't have screwed us in the many ways they have. If a dem. wins in November, they can pretty much do whatever they want, following bush's lead. Wait till they sign a signing statement and listen for the right to go crazy and raise hell. The same hell I guess we should have raised if we had damned elected officials who listened to us.
The outrage of congressional democrats at this overturn of the rule of law is awe inspiring. Theirs is the party of courage, of vision, and, above all, the party of the Constitution. I thank God I lived to see this day.
So all Bill Clinton had to do was request his OLC to rule that lying in a deposition in a civil lawsuit was legal. Then we wouldn't have had any of this impeachment nonsense back in 1998.
Or John Mitchell's OLC to rule that breaking and entering into the Democratic Party HQ at the watergate hotel was legal.
missmarple @ 36:
Fear and complacency. Enough people got so frightened by 9/11 that they were willing to do that which Ben Franklin so eloquently warned against -- give up liberty for safety. The real threat was, and always will be, too much authoritarian government.
More importantly, though, most people are complacent. Government and politics is just too far removed from daily life. It just doesn't affect us. Not in any real way. Or so most people think. Americans live in a giant Cabaret from which they are only now starting to emerge. I hope it's not too late.
As for apologizing to future generations, I would recommend a couple things. The first is to actively work for comprehensive electoral reform. If we can change the the mechanisms by which we elect our representatives, a lot of Congressional inaction will change. Our system is archaic, and fosters the kind of broken government free from any choice of candidates that will do anything about it.
Next, we need to add (re-introduce) comprehensive study of the Constitution and civics in our public education systems. You shouldn't be allowed to graduate high school without a fundamental understanding of how the Constitution works -- all of its blessings and all of its faults. Most people are woefully ignorant of Constitutional law. (And too many are willing to chuck the Constitution when it doesn't say what they'd like it to. That's not just the crazy Bushies. It's the so-called strict constructionist judges who avoid the Ninth and Fourteenth Amendments. It's the progressives who don't like the limits on the federal government. It's the conservatives who also don't like the limits on the federal government, but for very different reasons. Etc. Etc.)
Without these two things, I personally don't see much hope for the country at the moment.
lorelei23 @ 32:
That's correct. We no longer need the congress, or the courts. DoJ will tell us what the law is. It may change from day to day.
bob Says@35
Thats why impeachment is essential. If there is no judicial recourse because the AG is conspiring with the president, then there has to be a repudiation. Hypothetical: Clinton gets elected, conservative senators want discovery on some fresh scandal. She's going to A) comply with their fishing expedition or B) Classify every piece of paper in the White House and order every person there to ignore subpoenas. Just cite bush v world and go from there.
We have to reject the bush/cheney imperial presidency.
lorelei23 @ 42:
Worth a shot.
If Mukasey told congress that next time he was coming that THEY would be waterboarded, they'd all show up in their bathing suits.
What's the point of even voting democrat. I really hope Obama's different if he gets elected, but I'd be none surprised if we just kept getting all of the same nonsense.
Can't you just hear them now?:
"Yeah, it would be GREAT to restore Habeas Corpus or stop the war, but we need to think about the FUTURE. Here's the DNC's plan: If we can get ALL democrats for 2012 - president, both houses, a bunch of Supreme Court justices drop dead, ,all of the governerships, 80% all mayors and we get Dennis Miller back - THEN we'll actually stand up and talk very, very sternly to republicans. When all that happens, they WILL hear us, and then I'm sure they'll note our complaints."
Such winners.
steve @ 34:
Exactly.
By "Mukasey" logic, the OLC (Judicial Branch inside DoJ which is under the Executive) can give binding legal opinions. By historical precedent, signing statements (legislative actions by the Executive) can alter the law. Ergo, by a combination of Mukasey Logic and signign statements, you have the unitary executive.
People bitching "why doesn't congress do something" need to know what Congress should do. If you impeach this guy, you have not fixed the problem of the unitary executive; you have simply removed this one. You need Congress to challenge signing statements as unConstitutional. You need Congress to submit Mukasey Logic to the SCOTUS, as well. Otherwise, this problem will remain in the background.
Mukasey doesn't need the bar to be AG.
lorelei23 @ 42:
What are you talking about? Given the logic of his position, Mukasey is due a raise.
All the Mukasey that's fit to print at TPMmuckraker.
Everybody knew this asshole was just another Bush Ass Kisser and corrupt criminal.
You might as well light a match to the Constitution.
This administration has completely corrupted the checks and balances of power, and they could not have done it without the Congress and the Courts allowing them to get away with it.
Signing statements, torture, missing documents, using the justice department as their personal law firm, spying on Americans, illegal detention, illegal wars... (go ahead add to the list).
The saddest thing is; this is now precedent for future administrations.
What is the difference between Mukasey's tortured logic and "I was only following orders"? In seven years Bush has broken the army, looted the treasury, ruined the economy and shredded the Constitution. If we're lucky we'll get a country back - but historians had better write this as a warning to all - a determined bunch of conscience-less, power hungry criminals can take over this country in a very short time.
Obama is saying that he will restore Habeas Corpus. Just had to get that in for the record. I haven't heard Hillary say it, but that doesn't mean she hasn't, just that I haven't heard it.
JTM @ 58:
And thats an issue too. The primary reason for Alito and Roberts being bush picks is they are strong proponents of the unabridged power of the president. In fact so is Mukasey and EVERY person hired in a legal position.
Truth B Told @ 39:
Somebody added to my standard French Revolution suggestion last nite:
"Freedom's got an AK"
lol
Spotts1701 @ 26:
Well put!
.
Another possibility is terminating the war powers act. I dont know how that would work, but that would take the fig leaf away from the multiple war crimes.
It is only an abuse of Executive power because Kurtz and some spineless Democrat dim-bulbs say so?
Guess what? Fuck you!
President Bush has done what he God damn well pleased for the past six & 1/2 years and will continue to do so for the next (18) months. Get over it already.
Good for President Bush. Whether you love or hate 'W' he has done the job and no one has told him what to do or when to do it. His own man, our greatest President ever. When Bush said he was the decider he meant it. When Bush said he preferred being dictator he become one. When Bush wanted war he started two. When Bush set out to rob the treasury he was brazen in a broad daylight heist...
and to the Courts and the American people... piss off!!!
George W. Bush, the Greatest President Ever!
Acting Patriotic @ 61:
Note how Durbin is not even trying to fight "Mukasey Logic," maybe because, like Lederman, he admits it is logical. Instead, Durbin is going after the OLC lawyers. If you can show that they did not give an honest opinion, then they can be taken down. Sadly, it leaves the people who did the torturing free, but I doubt any method will get to them.
To JTM: Its not that complicated. The next (Democratic) administration should prosecute one of the torturers. I'm guessing he would tell everything he knows, and just like any other criminal conspiricy it could be traced back to its source. They do it with drug dealers, why not with the criminals in the DOJ and the White House?
This administration has completely corrupted the checks and balances of power, and they could not have done it without the Congress and the Courts allowing them to get away with it.
We kept electing the same bunch that were willing accomplices, so we bear some of the responsibility.
moondancer @ 69:
Has nothing to do with this. You need to find the legislation that created the OLC inside the DoJ.
JTM @ 60:
And this guy was a judge?
I swear before heaven, in fifty years when all these guys have died, hell is going to be absolutely full.
Powkat @ 72:
Prosecute him or her for what? He or she was doing something that the person he or she was supposed to ask "if this legal?" said was legal. You would have to first show that (a) the OLC's opinion was patently false and (b) that the torturer knew this. Good luck.
Let's all send a big Valentines thank you to Dianne Feinstein and Chuck Schumer for bringing us Alberto Gonzalez-the sequel.
JYM:
"People bitching “why doesn’t congress do something” need to know what Congress should do. If you impeach this guy, you have not fixed the problem of the unitary executive; you have simply removed this one. You need Congress to challenge signing statements as unConstitutional. You need Congress to submit Mukasey Logic to the SCOTUS, as well. Otherwise, this problem will remain in the background."
I agree. But they do nothing! The whole impeachment thing is laughable. They won't enforce a friggin subpoena, but next is impeachment. I'd settle for anything at this point.
I wonder how much $$$ the Carlyle group will make off the new "budget"
Oh I get it, the DOJ advised that torture was AOK. Then the torture was carried out and when the torturers can't be prosecuted because they are simply the recipients of bad legal advice from the DOJ. So you see, nobody is accountable.
This reminds me of something...
Oh yeah, the president was advised there were WMDs and a huge mess of a war began. People died, the US gained a nasty reputation, billions in tax dollars were handed over to haliburton and it is not the fault of 'the decider' because he was simply the victim of bad intelligence.
Someday I want to be a high ranking government official and become immune to being responsible for my actions.
moondancer @ 69:
Terminating the war powers act would give Bush all the power that he wants. The war powers act requires the president to seek retroactive authority from Congress upon sending the military somewhere. All presidents since its enactment -- including Clinton -- have complained that the law unconstitutionally infringes upon the powers of the Commander in Chief.
It was designed to balance out the separation of war powers in the Constitution, or at least give the separation some meaningful order. Only the president can command the armed forces to do something, but only Congress can declare war. There is a lack of clarity over what happens when the president acts militarily without an official declaration of war. It can't always be illegal. The president has to have the power to protect us, and make spur of the moment decisions.
Just getting rid of the war powers act would essentially mean that the president could venture off onto wars without officially calling them "wars."
If we really want to fix this, we need to amend the Constitution to clarify the war powers. We need to define what a war actually is, and give Congress the explicit power to end military action by declaring it to be over.
lorelei23 @ 75:
This man was "THE" Judge that signed the arrest warrant for one Jose Padilla, based on an erased video testimony given under torture.
And we wonder why he won't comment on waterboarding? He's not only protecting those who performed it and ordered it's use, he's also protecting himself.
A side note:
Jose Padilla was NEVER convicted on the original charges stemming from that arrest warrant... Hummmmmmmmmmmm...
.
What do you expect when the Bush Admin knows 'impeachment is off the table?"
Thousands of people tried to tell the Senators that this man should never be confirmed as Attorney General because of his refusal to state that waterboarding is torture. It is and has been considered torture since the middle ages and has been successfully prosecuted by the US and other countries. There is no discussion or question that waterboarding is torture.
Now, the Senate must do something, impeach Mukasey if necessary, to correct their horrible mistake.
Mukasey is nothing more than an enabler and protector of this criminal administration that stole the White House from the American people. They must be stopped before our Constitution is a mere memory to any of us.
Impeach these felons immediately!!!!!!!!!!!!!!!!!!
Pelosi and Reid are Co-Conspiritors in Bush's little game; What Bush can do then so can Democrats when they take the Whitehouse.
"We have now the Attorney General of the United States telling Congress that it’s not against the law for the President to violate the law if his own Department of Justice says it’s not."
Why does this sound familiar? Oh yes.
"When I use a word," Humpty Dumpty said in a rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
Humpty-Dumpty, in Alice Through The Looking Glass.
I hope somebody's due for a fall.
Max-1 @ 82:
Mukasey is AG because he strongly subscribes to cheneys view of the executive. I think many of us missed the theme of bushco lawyers. We were caught up in the christofascism, the assault on civil rights, etc and missed THE common denominator. Strong belief in unfettered executive beholding to the other branches for nothing except budget.
Even as the Republicans are solidifying the powers of the unitary president, states like Ohio and California are outlawing hackable voting machines ... But you have got to be kidding yourself if you think the neo-cons are going to allow a free and fair election that could hand their carefully constructed unitary executive power to the Democrats. If they aren't convinced they can steal yet another election, they won't allow it to be held.
Congress has one option to derail the unitary executive - which is a euphemism for dictatorship - and that is impeachment. Without impeachment, there won't be a real election.
No one in DC gives a shit about the constit