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Durbin Calls for Inspector General Investigation of Torture Memos
We know what Attorney General Michael Mukasey thinks about investigating the CIA's use of waterboarding. Not gonna do it.
And that's precisely what he said in a letter to Sen. Dick Durbin (D-IL), who's been hounding him on the issue, yesterday (you can read Mukasey's letter here). But Durbin thinks that Mukasey is missing the point. He writes:
...I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law” (my emphasis).
In other words, Mukasey's responses have been focused on whether the CIA agents (and possibly contractors) who carried out the waterboarding should be prosecuted. But Durbin says the emphasis should be on those who authorized the activity. He explains: "Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law."
And accordingly, Durbin writes that he will ask the Justice Department’s Inspector General and the Office of Professional Responsibility "to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful." You can read Durbin's letter in full below.
A similar investigation was launched in January, 2006 into whether the Department had properly reviewed the administration's warrantless wiretapping program; Bush ended it just as quickly as it began, however, by denying investigators the necessary security clearances. Shortly after Mukasey took office, that investigation started up again.
Durbin had demanded answers to a number of outstanding questions from Mukasey and said that he would hold the nomination of Mark Filip as deputy attorney general until he got them. Since Mukasey responded, he writes, he will release his hold on Filip's nomination.
February 7, 2008The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530Dear Attorney General Mukasey:
Thank you for your prompt response to my February 5th letter. I am disappointed in your response, but, as promised, I will lift my objection to the nomination of Judge Mark Filip to be Deputy Attorney General.
I want to take this opportunity to respond to several points in your letter. Although Central Intelligence Agency Director Michael Hayden admitted this week that the CIA has engaged in waterboarding and you testified last week that, “There are circumstances where waterboarding is clearly unlawful,” you say you will not open an investigation because the Justice Department informed the CIA that it would be lawful to use waterboarding. Your justification is that, “no one who relied in good faith on the Department’s past advice should be subject to criminal investigation for actions taken in reliance on that advice.” However, I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law” (my emphasis).
Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law. In response to a recent letter I sent you, Principal Deputy Assistant Attorney General Brian Benczkowski said that the Justice Department “has not had occasion to consider whether ‘command responsibility’ as defined in your letter is a theory under which an individual may be criminally prosecuted under the Torture Statute.” Your acknowledgement that the Justice Department informed the CIA that waterboarding would be lawful presents such an occasion.
There clearly is sufficient information to warrant a preliminary inquiry and/or criminal investigation into whether those who authorized waterboarding violated the law. The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations, which were signed by then Attorney General John Ashcroft in 2002 and remain in effect, state, “[A] preliminary inquiry [] should be undertaken when there is information or an allegation which indicates the possibility of criminal activity and whose responsible handling requires some further scrutiny beyond checking initial leads.” Moreover, during last week’s Senate Judiciary Committee hearing, in the context of discussing the Justice Department’s investigation of the CIA’s destruction of detainee interrogation tapes, you explained the low threshold for a criminal investigation: “When that preliminary inquiry showed some reason--some reason--to believe that some statute may have been violated, which is a very low standard, it’s well below probable cause, when that was met, that low bar, we were required to, and did, begin a criminal investigation.” In light of your conclusion that waterboarding is unlawful in some circumstances, CIA Director Hayden’s admission that the CIA used waterboarding certainly indicates at least “the possibility of criminal activity” and “some reason to believe that some statute may have been violated.”
Nonetheless, you have indicated that you will not investigate this matter. Therefore, I will ask the Justice Department’s Inspector General and the Office of Professional Responsibility to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful. As you know, a similar investigation is underway regarding Justice Department officials who advised the National Security Agency that its warrantless surveillance program is lawful.
I am also disappointed that you do not intend to fulfill your commitment to me to review all Office of Legal Counsel (OLC) opinions regarding surveillance, interrogation techniques, and detention standards. Prior to your confirmation, I asked you, in writing, “If you are confirmed, will you pledge to review personally all OLC opinions regarding surveillance, interrogation techniques, and detention standards to determine whether each of these opinions can be provided to Congress and to determine whether the legal analysis and conclusions of each of these opinions is correct?” You responded, in writing, “Yes.” However, at last week’s hearing you acknowledged that you had not reviewed all of these opinions. In your letter to me today, you state, “I have no occasion to review any prior advice provided by the Department on waterboarding, or any other technique that is not currently authorized for use in the CIA program.”
In response to my question about Steven Bradbury’s continued service as the head of OLC, you said, “Mr. Bradbury is an exceptional lawyer who has served the Department and the Nation admirably during his tenure in the Office of Legal Counsel.” Since you have only served as Attorney General since November 9, 2007, and you refuse to fulfill your commitment to review all OLC opinions regarding surveillance, interrogation techniques, and detention standards, it is unclear how you can make such a sweeping conclusion about Mr. Bradbury’s tenure at OLC. I am particularly concerned that you apparently have not reviewed an opinion, reportedly authored by Mr. Bradbury, on so-called “combined effects,” which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The New York Times, then Attorney General Alberto Gonzales approved this opinion over the objections of then Deputy Attorney General James Comey, who said the Justice Department would be “ashamed” if the memo became public.
I agree with you that our intelligence professionals should be able to rely in good faith on the Justice Department’s legal advice. However, CIA agents have been put in jeopardy by misguided counsel from the Justice Department, including legal opinions that the Administration has been forced to repudiate. Your refusal to review these opinions, much less investigate those who authorized waterboarding, places CIA agents at risk of receiving similarly flawed advice in the future. Moreover, your continued refusal to repudiate waterboarding does tremendous damage to America’s values and image in the world and places Americans at risk of being subjected to waterboarding by enemy forces
Sincerely,
Richard J. Durbin
Comments (13)
Durbin is completely correct in his call to investigate those that claim the Presidents actions are legal. Everything that AG Mukasey said yesterday is straight out of the infamous "Bybee Memo". Here are a few pertinent paragraphs.
This approach is consistent with previous decisions of our Office involving the application of federal criminal law. For example, we have previously construed the congressional contempt statute not to apply to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. In a published 1984 opinion, we concluded that
if executive officials were subject to prosecution for criminal contempt whenever they carried out the President’s claim of executive privilege, it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege also would preclude an application of the contempt of Congress statute to punish officials for aiding the President in asserting his constitutional privilege.
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted A Claim of Executive Privilege, 8 Op. O.L.C. 101, 134 (May 30, 1984). Likewise, we believe that, if executive officials were subject to prosecution for conducting interrogations when they were carrying out the President’s Commander-in-Chief powers, "it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties." These constitutional principles preclude an application of Section 2340A to punish officials for aiding the President in exercising his exclusive constitutional authorities. Id. [Page 36]
February 8, 2008 11:37 AM | Reply | Permalink
I am confuse by your post, saying yes is no. Are you saying past bad opinions from Office of Legal Counsel in Reagan 1984 administration on executive privilege are now good legal opinions in Bush’s 1984 government?
I ran across a quote from the memoirs of Reagan’s EPA Administrator Burford who wrote: "The people at Justice behind the push for executive privilege were all presidential appointees who, to be blunt, shared several characteristics: (1) they didn't have enough to do; (2) they weren't very good lawyers; and (3) they had tremendous egos. They wanted to make a name for themselves in Washington, and one way to do that while they were at Justice was to have their names on a Supreme Court case."
February 8, 2008 1:09 PM | Reply | Permalink
It's amazing. If you put the right folks in place you can take over the gov't. I still think some of these folks in the senate and congress are being blackmailed. Imagine the info garnered before they knew they were being violated. Anybody remember J Edgar Hoover? Otherwise, they have all gone crazy. Well, most of them.
February 8, 2008 12:07 PM | Reply | Permalink
Anyone who thought Mukasey would be different than Gonzales hasn't learned ANYTHING about Bush appointees since the day Bush took office.
Every candidate is vetted and when they pass muster they get the position.
February 8, 2008 12:08 PM | Reply | Permalink
Thank you Senator Durbin. Please proceed. It is past time to move ahead with criminal prosecutions of these scoundrels. The actions of this administration have soiled all Americans.
The administration has committed their crimes while acting in our name. As long as we do nothing we are complicit in their actions. By prosecuting them we demonstrate a repudiation of their criminal conspiracy (make no mistake, that is what this kleptocrat administration is).
Unless and until Americans turn our backs on the war criminals we share responsibility for their crimes.
Please proceed Senator Durbin.
February 8, 2008 12:08 PM | Reply | Permalink
Somewhere in the Constitution it must be said that if
those in the Executive branch are using Executive privilege to cover up criminal activity that privilege is null and void.If it does not,then we are indeed a Banana Republic,or worse,a fascist state.
February 8, 2008 1:10 PM | Reply | Permalink
Posted to SmileySam:
I am confuse by your post, saying yes is no. Are you saying past bad opinions from Office of Legal Counsel in Reagan 1984 administration on executive privilege are now good legal opinions in Bush’s 1984 government?
I ran across a quote from the memoirs of Reagan’s EPA Administrator Burford who wrote: "The people at Justice behind the push for executive privilege were all presidential appointees who, to be blunt, shared several characteristics: (1) they didn't have enough to do; (2) they weren't very good lawyers; and (3) they had tremendous egos. They wanted to make a name for themselves in Washington, and one way to do that while they were at Justice was to have their names on a Supreme Court case."
February 8, 2008 1:10 PM | Reply | Permalink
Senator Durbin joins other Democrats in continuously making the stupid mistake that somehow there is a misunderstanding and that a reasonable argument will win out.
These Republicans are protecting a criminal enterpise. One that has installed itself in power with widespread manipulations of elections and in mandating electronic voting machines that can be and were rigged when needed to swing elections.
The Republicans are destroying millions of pieces of evidence and Congress knows it. They are spying on every Democrat and any percieved enemy and they have taken controll of the Justice dept. to make themselves imune from US law.
So cut the stupid act and get a clue what is going on!
I agree with SmileySam that Democrats are being blackmailed or bribed: Pelosi, Feinstein, Leahey, Rockefeller and maybe Shumer clearly seemed to have been comprimised.
No person with any inteligence can keep falling for these tricks over and over and over and over and over.
They talk a big show but ALWAYS vote in a way that protects the Bush/Cheeny cabal of criminals. They do it for self protection - some threat which is greater than the threats inposed by looking the other way when crimes are commited.
Their oath of office to protect the constitution has long since been violated and is mute.
Mukassey saying he will not enforce the subpoenas of Congress is as clear an act of legalising a dictorship as can be done.
And yet these Democrats write letters and get "disappointed".
Enough! An intelligent person can reasonably observe that this congress has been fixed - how I can only guess, but any observer can see nothing but nothing is following the rule of law!
February 8, 2008 1:22 PM | Reply | Permalink
It would be interesting to note that Durbin, Leahy and Conyers are all supporting Obama and his open governemt policy.
By contrast Hillary and especially husband Bill have close ties with Bush Sr. This exchange is particularly telling:
“I cannot tell you the selfish pleasure I get out of working with President Clinton,” Mr. Bush said. “It’s a very selfish feeling I have in my heart to be out there transcending politics.”
The men talked about the importance of public service and philanthropy, with Mr. Clinton saying that Americans must take their citizenship seriously and not simply focus on their professional goals.
Mr. Clinton also drew some laughter when he thanked the university’s interim president, J. Bonnie Newman. “Madam President,” he said. “That has a nice ring to it.”
More women should be in charge, Mr. Clinton added, “so George and I can spend more time playing golf.”
http://www.nytimes.com/2007/05/20/us/politics/20commence.html?_r=1&scp=2&sq=Milestones%3A+Hillary+Clinton&st=nyt&oref=slogin
Hmmm....makes you wonder who will investigate war crimes against GWB. It also makes me wonder how much executive power and secrecy another Clinton presidency will garnish.
February 8, 2008 1:24 PM | Reply | Permalink
You can very easily make the case that the US Federal government is officially broken. You have the Executive Branch doing what it wants to do now with almost zero oversight from an emasculated Congress. Checks and balances are GONE.
Geez, even Nixon couldn't get away with this stuff.
It's amazing to look back at what happened to Clinton - lying about touching a breast -- and how close he came to be removed from office for just that.
The Founders weep.
February 8, 2008 2:16 PM | Reply | Permalink
BE CAREFUL WHAT YOU WISH FOR!!
I live in Illinois and am a long time supporter of Senator Durbin.
Until today.
In addition to the above, Senator Durbin had put the nomination of Judge Mark Filip on hold. Judge Filip is under consideration for the position of deputy attorney general.
So after Mukasey's revelations that he still is not going to say whether waterboarding is illegal, that the DOJ isn't going to investigate this or wiretapping, that it's the DOJ that decides what is legal and not the Supreme Court, what does Senator Durbin do?
Of course, in typical Democrat tradition these days, HE LIFTED HIS HOLD ON THE NOMINATION!
I'm sorry, but what the heck am I missing here?
February 8, 2008 3:37 PM | Reply | Permalink
You are not missing anything.The DEMS are all full of it!Lee Hamilton was involed in the Iran-Contra coverup and low and behold who do they choose to cover up the 9-11 fiasco?"Lee Hamilton" Then they approve the REPUGS judges for the Supreme Court,and attorney general,Gozales,now Mukasey,then they act suprised when these "Traitors"do all they can to protect their leader and party above the good of this country.
February 8, 2008 3:58 PM | Reply | Permalink
Its not reasonable to believe the US Congress is serious about investigating this issue. Pelosi is alleged to have been involved -- at some level -- in some discussions of proposed methods to be used agaisnt POWs. Arguably, any full investigation of DoJ AG or FBI into these issues would ask about Pelosi's role in "approving" the harsh interrogation tactics. Yet, Pelosi has taken impeachment off the table. She should recuse herself.
The US system of governance divides power, and Congress and the President share jurisdiction over various policies. One of the policies which the President and his staff are alleged to have shared, and gotten approval from Congress are the alleged POW mistreatment policies. These are alleged to be in breach of the Geneva Conventions. Durbin writes about "command responsibility", but this is not isolated to military commanders, but also includes civilian policy makers. Nuremberg did prosecute civilian policy makers who failed to prevent, or did not stop war crimes.
Any plans of DOJ AG to review the DNC leaders' alleged "involvement" with the POW-abuse policies? Congress and the AG are on separte sides of the same coin of tyranny in re Geneva abuses. DoJ AG and Members' of Congress appear to be in conflict, but their interests are aligned and mutually shared: To thwart the natural consequences of any war crimes investigation as it relates to the President, legal counsel, or Members of Congress and their staff counsel.
As long as there is no impeachment, no American citizen should take seriously any claim by Congress that the DOJ AG should or should not do anything. DoJ AG inaction on a war crimes investigation temporarily insulates Members of Congress from defending themselves.
To what extent are Members of Congress like Pelosi at risk of being held liable -- as a policy maker -- for supporting war crimes against POWs? Command responsibility includes attaching legal liability to those civilians like Pelosi who were in a position to influence policy, oppose it, or not support it.
What is the plan of Pelosi to recuse herself on issues of alleged war crimes, arguably impeachable offenses? A decision to keep impeachment off the table, combined with her alleged complicity with the known POW mistreatment policies could attach to her liability for the alleged war crimes implementation. There does not appear to be any plan of Pelosi to recuse herself. There should be an open discussion to support removing Pelosi as Speaker to make way for the impeachment investigation. Either she recuses herself on impeachment; or the position of Speaker needs to be declared vacant. (Petition )
To what extent can Pelosi's "policy" of taking impeachment off the table be part of a larger pattern of Congressional leadership's assent to illegal warfare; or their decision to not fully enforce the laws of war against civilian policy makers? Malfeasance is a basis to bring indictments against civilian policy makers. In the US government, policy making is a shared power the Congress and President share. Taking impeachment off the table could be adjudicated as a defacto policy of the Congress, and specifically Pelosi to assent to breaches of the laws of war; and an alleged conscious decision to not fully enforce the laws of war, as required by oath, 5 USC 3331. The decision to impelement an alleged illegal policy is different than the decision to not stop alleged war crimes, but the outcome is the same: Breach of Geneva. These are the foreseeable consequences of malfeasance, and evidence that members of Congress had mental reservations about their duties to fully enforce the laws of war, as required by oath.
There is no merit to any assertion that the Constitution "does not grant POWs rights." Rather, the Constitution imposes a legal duty on Members of Congress to fully enforce the laws of war. Where that duty is breached, a Member of Congress could be indicted for malfeasance in re the laws of war.
What is the plan when the DOJ and Congress appear tainted and have a shared interest in not fully enforcing the laws of war against civilians in either the executive or legislative branches: Do the states have a role or is it the ICC; or can the laws of war only be enforced against Members of Congress through the lawful combat operations available to foreign powers?
Laws must be enforced, otherwise there is no legitimacy. A shared interest to violate and not enforce the law does not make that interest legal. Where there are war crimes, and the civilian policy makers like Pelosi are alleged to have been briefed on those planned war crimes, there is an argument to be made that Pelosi is attached to the illegal policy and the subsequent abuses imposed as a natural, foreseeable consequences of that alleged unlawful policy.
The State AGs have a legal duty to enforce the US Constitution from domestic enemies. One duty to fully enforce the Constitution is to ensure all legal obligations under Geneva are fully enforced. State AGs with evidence could adjudicate alleged oath of office violations and alleged war crimes against Members of Congress, the President, and Vice President.
Where the DOJ AG, Congress, and ICC either have no stated policy, no plan, or no inclination to either prosecute, impeach, or enforce the laws of war, someone has to enter the nexus to ensure the laws are enforced. Without enforcement, the legal requirements do not go away.
With respect to Geneva, enforcement would transition from peaceful options in the court of law to lawfully permitted acts of retaliation and reciprocity. These were foreseeable consequences which Pelosi and others are alleged to have fully understood when they allegedly approved the POW mistreatment policies. It is a foreseeable risk that the unlawful POW treatment policies would expose US citizens to greater chances of open combat through retaliatory acts. This hardly meeds the standard of care expected of civilian leaders in the wake of Nuremberg, much less the United States.
Without a statute of limitations, it is foreseeable that there are efforts to adjudicate war crimes against Pelosi and other members of Congress for their alleged complicity with war crimes policy implementation. Whether that adjudication is at the hands of the DoJ, US Atty, State AGs, ICC, or foreign powers remains to be seen.
February 8, 2008 7:31 PM | Reply | Permalink