Mukasey stands with the torture attorneys

Attorney General Michael Mukasey is defending former government lawyers who drew up the legal basis of the Bush administration's use of harsh interrogation methods against terror suspects.

Mukasey told Boston College Law School graduates Friday that lawyers doing their part to protect the country in the aftermath of the Sept. 11 attacks should not now be held liable or face criminal charges for doing so.

Mukasey did not mention any specific lawyers by name.

Former Deputy Assistant Attorney General John Yoo is facing at least one civil lawsuit and demands for his firing from Berkeley Law School. Yoo worked in the Justice Department's Office of Legal Counsel from 2001 to 2003.

While there, he wrote several memos legally defending the use of harsh interrogation tactics which are now under criticism by human rights groups and members of Congress. Yoo's memos concluded that President Bush has broad, unfettered wartime authority that cannot be limited by domestic law or international bans on torture.

So they did notice

That Mukasey slipped up and actually let some information out:

Conyers, Judiciary Members Demand Answers from Attorney General on 9/11 Surveillance (Washington, DC)- Today, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Subcommittee Chairmen Jerrold Nadler (D-NY) and Robert “Bobby” C. Scott (D-VA) sent a letter to United States Attorney General Michael Mukasey demanding answers about a recent public statement claiming there was a pre-9/11 call from a terrorist safe house in Afghanistan that was apparently not intercepted by federal authorities. The Members also followed up on previous requests for an October 2001 Office of Legal Counsel memo providing legal analysis about the President’s war powers. The letter notes: “The notion that the President can claim to operate under ’secret’ powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy.”

Now let's see how fast Mukasey will not be able to recall what he meant by saying what he doesn't really remember saying just a few days ago...


crossposted at Steve Audio

(via Steve Bates of The Yellow Doggerel Democrat in comments)

Which is it, Mukasey?

Glenn Greenwald: (my bold)

Either Mukasey is lying about the 9/11 attacks in order to manipulate Americans into believing that FISA's warrant requirements are what prevented discovery of the 9/11 attacks and caused 3,000 American deaths -- a completely disgusting act by the Attorney General which obviously cannot be ignored. Or, Mukasey has just revealed the most damning fact yet about the Bush's administration's ability and failure to have prevented the attacks -- facts that, until now, were apparently concealed from the 9/11 Commission and the public.

Since I wrote about this on Saturday, there has been some slowly evolving media attention paid to it. On Monday, I discussed the story on the radio with Rachel Maddow who, as always, grasped completely its importance. The following night, she was on Countdown with Keith Olbermman, which had a lengthy and detailed segment, highlighting all of the right questions (video below). Raw Story compiled a very thorough article with the key facts, and the top Daily Kos post this morning does the same.

The great significance of this story -- that Mukasey either completely fabricated a key 9/11 event or just revealed a heretofore unknown 9/11 bombshell -- is self-evident and made clear by these growing accounts. Having Hamilton, Kean and/or Zelikow comment on the veracity of Mukasey's claims about the 9/11 attacks -- as they ought to do -- is vital for advancing the story.

The gauntlet has been thrown down and your blood should run cold.

This is the very definition of a Constitutional crisis.

Digby of Hullabaloo: (my bold)

The Attorney General is saying that the President can do anything he wants, break the law any way he wants, as long as the President's own Justice Department, populated his own handpicked officials, validates it. And he's saying it directly to members of Congress, essentially telling them that they don't exist. They have no power to prosecute because the Justice Department won't take up the case, and the courts have no power to adjudicate because these are official state secrets. There is only one branch of government that matters.

[snip] David Kurtz:

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.

Why are we not arming ourselves with pitchforks and torches? Frankenstein's monster is loose and we can't get anyone to notice. Even in Congress.

NTodd of Pax Americana quotes the Rolling Stone:

Quietly, while Hillary Clinton and Barack Obama have been inspiring Democrats everywhere with their rolling bitchfest, congressional superduo Harry Reid and Nancy Pelosi have completed one of the most awesome political collapses since Neville Chamberlain. At long last, the Democratic leaders of Congress have publicly surrendered on the Iraq War, just one year after being swept into power with a firm mandate to end it.

[snip]

The really tragic thing about the Democratic surrender on Iraq is that it's now all but guaranteed that the war will be off the table during the presidential campaign. Once again — it happened in 2002, 2004 and 2006 — the Democrats have essentially decided to rely on the voters to give them credit for being anti-war, despite the fact that, for all the noise they've made to the contrary, in the end they've done nothing but vote for war and cough up every dime they've been asked to give, every step of the way.

Even beyond the war, the Democrats have repeatedly gone limp-dick every time the Bush administration so much as raises its voice. Most recently, twelve Democrats crossed the aisle to grant immunity to phone companies who participated in Bush's notorious wiretapping program. Before that, Democrats caved in and confirmed Mike Mukasey as attorney general after he kept his middle finger extended and refused to condemn waterboarding as torture. Democrats fattened by Wall Street also got cold feet about upsetting the country's gazillionaires, refusing to close a tax loophole that rewarded hedge-fund managers with a tax rate less than half that paid by ordinary citizens.

But the war is where they showed their real mettle. Before the 2006 elections, Democrats told us we could expect more specifics on their war plans after Election Day. Nearly two years have passed since then, and now they are once again telling us to wait until after an election to see real action to stop the war. In the meantime, of course, we're to remember that they're the good guys, the Republicans are the real enemy, and, well, go Hillary! Semper fi! Yay, team!

How much of this bullshit are we going to take? How long are we supposed to give the Reids and Pelosis and Hillarys of the world credit for wanting, deep down in their moldy hearts, to do the right thing?

Look, fuck your hearts, OK? Just get it done. Because if you don't, sooner or later this con is going to run dry. It may not be in '08, but it'll be soon. Even Americans can't be fooled forever.

Except there are some people awake and unafraid of the Bush cabal. Emptywheel notes that Steven Bradbury's nomination is being forestalled in the Senate because of this very thing. I chose just one of the many links: (my bold)

And the Politico:

While there are scores of pending appointments, much of the acrimony can be traced back to Steven Bradbury, nominated to the post of assistant attorney general, office of legal counsel.

Despite the banal title, the office issues legal opinions which are binding on the executive branch. While serving in the position as acting assistant attorney general, Bradbury signed memorandums authorizing the use of harsh CIA interrogation techniques, which Democrats have characterized as torture.

In December, Reid offered to confirm 84 stalled administration nominees in exchange for the withdrawal of Bradbury's nomination, but the White House declined, according to Reid.

In spite of Bush's little breakfast theater yesterday, everyone seems to get that this argument is about Steven Bradbury, and only secondarily about Bush's neanderthal choices for a number of his other nominations.

But no one seems to get the reason why Bush has forced this stand-off with the Senate. As I pointed out several weeks ago, the re-appointment of Bradbury--whether or not he is confirmed--serves as a control on Mukasey from now until the end of Bush's Adminstration.

...the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush's term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick's Constitutional atrocities.

No matter what Mukasey's intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration's shredding of the Constitution.

More importantly, as yesterday's HJC hearing proves, having Bradbury in OLC authorizing whatever atrocities BushCo dream up gives them immunity from federal prosecution for those atrocities; Attorney General Mukasey has made it clear that he will not investigate or prosecute anything that has OLC sanction. (And read Marty Lederman for why Mukasey's stance, though logically atrocious, is legally justifiable.) The very best we can wish for, from Mukasey, is that he won't sign off on any more Pixie Dust and Waterboarding opinions (though that assumes that Addington and Bradbury will show him the opinions, which may not be a safe assumption).

George Bush would forgo all his other 84 appointments because he wants to remain safe from prosecution and probably would like the insurance of immunity for any of his actions going forward. Democrats need to make this clear--Bradbury is about more than a personnel dispute, it's about whether the President is above the law.

Avendon Carol of The Sideshow quotes Charles Pierce of Media Matters:

For the past couple of weeks, they've just gotten blatant about it. The administration of George W. Bush is bound by no law, bound by no precedent, bound not even by the forms of democratic self-government, let alone its actual substance, which is being used as a throw-rug in John Yoo's den these days. They will torture and the Congress can do nothing. Their powers to spy, to search, and to seize are unlimited and Congress is not remotely entitled to know even what those powers are. They can imprison without trial. They can force corporations -- and, indeed, individuals within the government -- to violate the law. They are not subject to treaties. They are not subject to oversight, nor even subpoenas. Read this swill from yesterday. Through his actions, and from the mouths of his minions, George Bush is now claiming fully the powers of a tyrant, by any reasonable definition of the term.

This is the only issue in the presidential campaign. It is the only truly existential threat to the country.

Above the law?

Steve Bates of The Yellow Doggerel Democrat:

This is about the failure of either of the other two branches of government to curb the Bushists' appetite for unchecked executive power.

If Mukasey will not investigate, Congress must investigate Mukasey, along with anyone else involved in this transparently unconstitutional exercise of executive power. To all appearances, Mukasey forswore himself in his confirmation hearings. Now it is time for Congress to pursue his misdeed. He must not be allowed to insulate higher officials in the executive branch, especially but not limited to Messrs. Bush and Cheney, from responsibility for their unconstitutional acts. If obtaining a priori DoJ approval to commit acts prohibited under established international law and to violate the Fourth Amendment rights of every American who picks up a telephone or writes an email isn't evidence of criminal and likely even unconstitutional acts, what protections of our fundamental rights and civil liberties do we have left? Either this matter is pursued, probably by Congress, or we have nothing, and our supposed rights and liberties mean nothing.

I'll take Kurtz's assertions a step further, and reiterate my call for impeachment of at least Bush and Cheney, along with every other high executive branch official who participated in the decision that the executive is permitted to freelance. The Constitution says otherwise. I stand by the Constitution's plain language... and I stand by its prescribed remedy.

Amen.

Stating the obvious

Headline: CIA Boss: Waterboarding May Be Illegal.

Ya think?

Though now legally questionable, Hayden said waterboarding was legal in 2002 and 2003, a time period when the technique was used to interrogate Al-Qaida detainees.

"All the techniques that we've used have been deemed to be lawful," he said.

Hayden's comments came just hours after Attorney General Michael Mukasey, in a separate House hearing, said the Justice Department would not investigate whether U.S. interrogators broke the law when waterboarding accused terrorists following the Sept. 11 attacks.

And just why was it 'legal' between 2002 and 2003 and now is not? Could it just possibly be that the Bush administration demanded torture and insisted it be used? Is that why they insisted the Geneva Conventions were 'quaint'? Is that why Mukasey has to twist himself into humiliatingly painful contortions of logic and law to explain why he can't find waterboarding illegal? Is that why the Bush cabal is running for cover under rocks to hide from lawsuits?

This will be the legacy of George W. Bush, the gaseous whimpering of deflating hubris that made the Bush administration think they could shock and awe the world and have all cowering at their magnificence.

All they have is ruin and wreckage, quagmires and stench. And lawsuits hovering above their heads for ever after, amen.

Tortured argument

We don't torture because what others call torture the preznit doesn't call torture, so nobody can call it torture even if it is torture because we said it's not torture....

In 2005, CIA officials ordered the destruction of videotapes depicting the harsh interrogation of prisoners in the agency's secret overseas prisons. CIA Director Michael Hayden admitted that in December 2007 amid a public debate over the use of "waterboarding" on detainees and whether or not the technique — which simulates drowning — constituted torture. At that time, Hayden said that only a few prisoners were ever subjected to "special interrogation techniques," which can include waterboarding, and that nothing was recorded on video after 2002. That claim is now coming under additional scrutiny, in part due to a classified briefing that will be delivered to the Senate Select Committee on Intelligence this Friday. Lawyers for one current Guantanamo detainee tell TIME that they plan to present evidence that he was subjected to unspecified "systematic torture" that was videotaped when he was held in secret CIA prisons. The lawyers say the alleged videotaped torture took place after his arrest in 2003.

Majid Khan, 27, a former suburban Baltimore high school student, was first seized by authorities in Pakistan, where he said he was visiting his brother. Khan then spent more than three years in a secret overseas CIA "black site" before President Bush ordered his transfer to Guantanamo along with 13 other high-value detainees. Also transferred was alleged 9/11 mastermind Khaled Sheik Mohammed, who had allegedly ordered Khan to research attacks on American water reservoirs and gas stations.

Khan's lawyers are armed with more than 500 pages of top-secret notes taken during recent sessions with their client at Guantanamo; they will use the material to describe his interrogation and detention to the Intelligence Committee. Though details are highly classified, his lawyers claim that he and others were tortured and videotaped, charges that Hayden and other CIA officials deny. On Feb. 5, Hayden admitted to Congress that the CIA had used waterboarding on Khaled Sheik Mohammed and two others. The CIA continues to assert that it does not engage in torture.

Picture taken from article.

Attorney General Mukasey joins the ranks of those using the Nuremberg excuse,"I was just following orders."




Crossposted at SteveAudio.

Update: The White House would consider using waterboarding again:

In congressional testimony yesterday, CIA director Michael Hayden confirmed that his agency used waterboarding on three al Qaeda suspects. In 2006, Hayden banned the use of waterboarding in CIA interrogations. The Pentagon also banned its employees from using it, and the FBI said its investigators do not use coercive tactics in interviewing terror suspects.

But in today’s gaggle, White House said that it may approve the use of waterboarding again “depend[ing] upon circumstances”:

“It will depend upon circumstances,” spokesman Tony Fratto said, adding “the belief that an attack might be imminent, that could be a circumstance that you would definitely want to consider.”

Later, in a press briefing, Fratto tried to distance himself from these remarks, claiming that he only was talking about “the process” of approving waterboarding. “I’m not speculating,” he declared.

Click on the link to watch him backpedal.

Update 5:00: Blue Girl at BlueGirl, Red State says it best:

When the current occupant authorized waterboarding and other "enhanced interrogation techniques" (call them what they are: torture) he sold America's soul, and illustrated Ben Franklin's observation that those who would trade away their freedoms for a false sense of security deserve neither.

Waterboarding is torture. Period. Full stop.

It has long since been classified as such, and Congress is considering taking up legislation banning the CIA from using it. It is already prohibited under the Army Field Manual.

I am the ultimate Cold War brat. I have some pretty set-in-stone ideas and ideals. One of them is that we simply don't do things like that. There truly are prices that are simply too high to pay. Abdicating the moral high ground out of fear is one of them.

I realize full measure that "American Exceptionalism" was always a myth - but at least we used to pretend to behave in an exceptional manner.

Mukasey goes after the last standing stronghold of a free people,

Proving he is a real friend of the neocons.

Glenn Greenwald:

.... before his nomination was formally announced, the White House chose Bill Kristol to announce his selection and, in a lengthy article, to vouch to conservatives for what a fine AG Mukasey would make.

Mukasey was a long-time supporter of the neocons' favorite candidate, Rudy Giuliani and, prior to becoming Attorney General, was part of the Giuliani campaign. And it was Dianne Feinstein and Chuck Schumer -- both with neoconservative leanings (war supporters both, among other things) -- who jointly enabled Mukasey's confirmation by becoming the only Democrats on the Senate Judiciary Committee to vote in his favor.

Although there are still facts missing -- such as whether this Subpoena was actually approved by Mukasey rather than Gonzales -- it's hard to avoid the conclusion that the Grand Jury Subpoena was done at least with Mukasey's assent. It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President.

It's hard to overstate how threatening this behavior is. The Bush administration has erected an unprecedented wall of secrecy around everything it does. Beyond illegal spying, if one looks at the instances where we learned of lawbreaking and other forms of lawless radicalism -- CIA black sites, rendition programs, torture, Abu Ghraib, pre-war distortion of intelligence, destruction of CIA torture videos -- it is, in every case, the by-product of two forces: government whistleblowers and reporters willing to expose it.

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing -- the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress. Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.

Right. No free press, no real journalism, no ability for checks and balances over the worst administration ever. Thanks.

And tell us again how waterboarding is not torture, Mukasey. That one is always good for a laugh.

Update: Glenn Greenwald links to Spencer Ackerman of the Washington Independent:

The Justice Department is going after New York Times reporter Jim Risen for the non-crime of revealing President Bush’s illegal domestic surveillance program. It’s pathetic and unsurprising—a fixture of Bush Justice—that the activity DOJ pursues isn’t the blatant illegality of Bush violating the Foreign Intelligence Surveillance Act, but instead the fact that government sources blew the whistle to a great investigative reporter. The right response from the press, and the public, is to put one arm around Risen and, with the other arm, extend a single finger in the direction of the Justice Department.

This is mildly encouraging

Mukasey taps Fitzgerald for AG advisory post:

More evidence that new Attorney General Michael Mukasey is running a more transparent and inclusive shop than his predecessors John Ashcroft and, especially, Alberto Gonzales:

Mukasey announced today that he's appointing Chicago federal prosecutor Patrick Fitzgerald to the Attorney General's advisory committee of U.S. attorneys.

Fitzgerald was on the committee from 2001 until 2005, but his appointment to it preceded his service as special prosecutor in the Valerie Plame CIA leak investigation.

No wonder Georgie is pushing to annoint Mukasey

He's Georgie's aerobics teacher:

Mukasey just needs to get -- get on the floor and get him an up or down vote. They've had plenty of hearings, plenty of ideas, get him out there and get him up and down.

Lord knows, Georgie needs one...