Attorney General Michael Mukasey has been kind enough to share some fascinating insights with the House Judiciary Committee today on an administration that believes it can immunize itself from law breaking. Seriously.
Committee Chairman John Conyers (D-Mich.) explained to the AG that several administration officials have acknowledged in recent days that the Bush administration subjected at least three detainees to waterboarding. Because waterboarding is torture, and torture is illegal, Conyers asked Mukasey whether he’s now “ready to start a criminal investigation.”
“No, I am not,” was the direct answer.
His reasoning was a repeat of his answer to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department “cannot possibly” investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.
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.
Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was (“there are views on both sides of that” he acknowledged).
Mukasey also went back to correct his statement during last week’s hearing that he “didn’t know” if the President had ordered the warrantless wiretapping outside the law. Silly me, he said, of course it was legal — it was authorized by the DoJ.
I suspect this all seems rather routine at this point — what a surprise, Bush’s AG is unwilling to consider Bush’s illegalities — but we shouldn’t rush past this too quickly.
Both the administration’s torture policies and the administration’s illegal surveillance policies were cleared by the Office of Legal Counsel in Bush’s Justice Department. 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 (Thanks to Democrats like Dianne Feinstein and Chuck Schumer for caving on the Mukasey nomination.).
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.
The purpose of the OLC’s review process is to collect legal guidance about courses of prospective policies an administration might want to pursue. Under the Bush administration, however, OLC review became a waiver of immunity for breaking the law. From Jeff Rosen’s profile of Jack Goldsmith: “[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls ‘free get-out-of jail cards’ by saying yes. Its opinions, he writes in his book, are the equivalent of ‘an advance pardon’ for actions taken at the fuzzy edges of criminal laws.”
Recall that after the news of the August 1, 2002 OLC torture memo broke, then-AG John Ashcroft testified to the Senate that “There is no presidential order immunizing torture.” Maybe not from the president. But according to Goldsmith’s account, immunization from prosecution is the elephant in the room when administration lawyers discussed in 2002 what CIA interrogators could lawfully do to al-Qaeda and Taliban detainees.
I’m fairly certain impeachment was developed for situations like these.