Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, February 07, 2008

Okay, now I'm mad.

I've read this article several times and I still have a hard time believing it. Michael Mukasey, the attorney general of the United States who was put there by Dianne Feinstein and Charles Schumer, now says the following:

"I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."
Got that? If someone does something the DOJ says is legal, then it's legal. Period.

But what if there was a mistake? What if the DOJ misinterpreted a law?
That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.
It's time to impeach. If you can't impeach for this then you can't impeach for anything. If we are willing to stand by and let the government say this, then there's nothing we won't let slide.

Impeach now.


Dr. Strangelove said...

Mukasey's defense: "They were just following orders."

Except it wasn't even an order. As yet we have no evidence of who ordered the torture. We just have a discredited memo indicating that such an order would not be illegal if given.

Those who tortured the prisoners must be prosecuted. Isn't it war crime?! Likewise, any of their superiors who ordered it or looked the other way must tried for their culpability. Furthermore, the DOJ must investigate whether the authors of the memo are responsibly for any of the torture that a reasonable man would have known would result from it. Finally, anyone in a higher position of authority who knew torture was occurring and did not stop it must be tried, or impeached as the case may be. It could go all the way up to Bush or Cheney--it doesn't matter.

If Mukasey refuses to investigate this, he must be impeached for manifest failure to perform his job. Congress can start the ball rolling there. No one will ever take this government's claims on torture seriously if we admit we did it and do nothing. (And Bush actually defends it, which is sickening.)

The Law Talking Guy said...

Reliance on advice of counsel is a defense to some things, and a mitigting factor in others. In this case, the factual question of whether anyone relied on the DOJ opinions (for example, were they issued AFTER the torture?) is, itself, worth investigating. Also, whether there was collusion in issuing the opinions (i.e., the defendants knew the DOJ was not rendering objective legal advice).

Dr. Strangelove said...

Good point on the timing of the DOJ opinions. The memo is apparently dated January 2002, which is almost certainly prior to the admitted acts of torture. But it's not clear when that memo got circulated to the right people, which may well have been after the fact.

Is reliance on advice of counsel a defense in this instance? I keep thinking of Nuremberg.

Raised By Republicans said...

I sympathize completely with Bell Curve's outrage. It's insane for the Attorney General to claim the right of the Supreme Court to interpret the law. But since the President has been claiming exactly that right throug his signing statements why shouldn't his appointed agents do likewise?

The Law Talking Guy said...

The attorney general can legitimately decide not to prosecute people for actions that it has determined are not crimes where its determination is mad ein good faith based on uncertain legal authority. Federal agencies rely on this legal advice. This action is quite different from the attorney general deciding to ignore the law or make up law. It is also different from the issue here: the US constitution and crimes against humanity.

USWest said...

LTG is correct to my knowledge.

The problem is that the DOJ must guide employees in other agencies in regards to their legal obligations. If the DOJ gets it wrong and an employee operates in good faith based on the DOJ advice, then the ax needs to fall at the DOJ, not with the employee.

The real issue here is that no one believes that the DOJ was operating in good faith on the torture issue. LTG is correct; it becomes a matter of timing. What came first, the torture or the legal guidence.

The Law Talking Guy said...

Thanks USWest. And of course, the problem that we're both pointing out is that Mukasey couldn't be more wrong about this being a matter of administrative policies.

The decision to waterboard or not is quite DISSIMILAR to a decision about, say, whether Regulation 8-Q-5R permits deduction of expenses for commercial waterfowl feed when the waterfowl are migratory as opposed to non-migratory, where the statute and regulation are silent on the subject.

This is about Amendments IV, V, V, and VIII, as well as international conventions and the prohibition on torture under now-customary international law. Big stuff.