February 08, 2008


In a little-reported story yesterday, the Attorney General of the United States argued that if the Justice Department declares something to be legal, it cannot (later) be investigated to see if it is (in fact) legal or not:

Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.

"That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," he said.


Many Democrats this week have called on Mukasey to open a separate criminal investigation to focus on the CIA's use of waterboarding and whether it violates U.S. anti-torture laws. Although Mukasey suggested in testimony last week that the tapes investigation could include that subject, his position has since appeared to have hardened.

Waterboarding, he told the House committee, "cannot possibly be the subject of . . . a Justice Department investigation" because its use was approved by the Justice Department's Office of Legal Counsel. Mukasey made a parallel argument about the National Security Agency's warrantless wiretapping program, saying the Justice Department could not investigate that program because it was approved at the outset by the department's lawyers.

This has resulted in some people noting that the argument smacks of tyranny; a government declaring that (because someone previously said something was legal) it cannot investigate itself means that the government can take practically any action it wants (declaring it legal), since there will be no cost down the road (an investigation as to whether someone did something wrong). You've heard of retroactive immunity? This is pro-active immunity.

I realize we have less than a year to go in this administration, but the degree of insanity has not leveled off yet.

Posted by baltar at February 8, 2008 10:36 AM | TrackBack | Posted to Corruption | Law and the Courts | Liberty | Politics | The Ever Shrinking Constitution


Pro-active immunity. Nice. Or not - really, really not.

Btw, in a similar vein did you see Bruce Fein's piece in the Washington Times earlier this week. A selection: "Jan. 28, 2008, is a date that will live in congressional infamy. Congress surrendered the power of the purse over national security affairs to the White House. President Bush appended a signing statement to the National Defense Authorization Act of 2008 denying the power of Congress to withhold funds for establishing permanent U.S. military bases in Iraq, or to control its oil resources. The statement tacitly averred that Congress was required to appropriate money to support every presidential national security gambit, for example, launching pre-emptive wars anywhere on the planet or breaking and entering homes to gather foreign intelligence ... Congress has taken the Constitution backward more than three centuries to the Stuart monarchs ... The English Bill of Rights of 1688 assailed the last of the Stuart monarchs for subverting the liberties of the Kingdom, "By levying money for and to the use of the Crown by pretense of prerogative for other time and in other manner than the same were granted by Parliament" ... Mr. Bush is now crowned with more power than the Stuart kings."

Posted by: Armand at February 8, 2008 10:52 AM | PERMALINK

Yeah, I did see that. Couldn't work up the outrage to get fired up (part of my lack-of-outrage over the signing statements thing is that it is unclear if the President has actually violated the law; in other words, the signing statement says the President doesn't have to obey the law, but it is unclear if Bush goes so far as to actually ACT on the signing statement, as opposed to just saying (via the signing statement) "I don't have to do this." So, according to me, we should get upset when Bush actually puts money forward (contra the express, legal, wishes of Congress) to establish a permanent base in Iraq). But, yeah, it's illegal.

Just FYI, Marty Leiderman at Balkininzation has a rebuttal, arguing that the Justice still doesn't believe that it's previous advice was illegal, so it certainly can't prosecute people for doing things that were legal (in their opinion). I see his logic, but still think that the original Justice opinions were wrong, and (thus) you still have a valid reason to investigate (if not prosecute).

Posted by: baltar at February 8, 2008 11:10 AM | PERMALINK
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