Mukasey has made the Bybee Memo come to life just like Frankenstein.

Justified reliance is the new plausible deniability. I need to tell some people in my organization to do something I'm pretty sure is going to get them into legal trouble if anyone finds out and challenges them. No problem. I will tell my legal-type guys to write a memo explaining, using whatever tortured logic they can come up with, that said actions are not "technically" illegal. Who cares how tortured the logic, since the legal guys will always be home free since they sure as hell will never prosecute themselves. Then, when the S hits the F my people can claim they were told it was okay under the legal opinion memo. If that firewall fails, I can always claim executive privilege. Man, I can't wait to kick some ass.

I would really like to see some legal experts comment on this.

It is my understanding that this position is entirely out of line.

I can understand it coming from someone with the administration. Coming from an ex-Federal judge is absolutely mind boggling.

I think in the real world the result would be that the criminal would be liable despite his "justified reliance," and his lawyer would be in trouble, too.

Does this mean that the Administration would be execpt from liability if the FISA ammendment that substitutes the Administration for the Telcos is passed?

Mukasy is talking trash. The decision about what the law means is up to the courts, with the US supreme court the final arbiter. It is not up to the president and his hand picked AG. As corrupt as the current supreme court is I don't believe for a moment they would consent to giving up that authority to an AG.

So then why didn't they just get OLC to say that assassinating Saddam wouldn't be technically illegal with some weird logic to back it up?

Think of all those lives and money we could've saved.

Mukasy is, of course, talking trash, nonsense, BS, or whatever else you wish to call it. It is the courts who decide how or if laws apply to specific cases, not the AG and his staff. Ultimately it is the US Supreme Court that has the authority to make those decisions. As corrupt as the present Supreme Court is, you can be sure they will never agree to give up that authority.

Unfortunately we don't have a Congress with the courage needed to oppose Bush. If Bush tells them to take a flying leap, they will all look like Jack Rabbits.

So let me get this straight...NOW, the congress makes laws, the White House makes it's own laws thru signing statements and now the AG says that what ever the other two branches do, it's the JUSTICE DEPARTMENT that gets the last say on what law is REALLY the law...

huumm..the last time I read that part of the constitution (30 minutes ago) that's NOT what it says!! How did I read that so badly???

Excellent point, swph! Looking at FISA and the warrant less wire taping it probably will go down like that. They just put the government as defendants and then dismiss the cases because the DOJ said it was legal. Maybe Dubya isn't so dumb after all. Its genius.

Kafka and Orwell seem to have lived in vain.

So, if I understand him, the Attorney General and staff are incapable of being wrong or doing wrong?

Doesn't this come under "ignorance of the law is no excuse"? Seems pretty cut and dried to me. But then, I'm no lawyer.

If authorizing and ordering the torture of human beings is not an impeachable offense in the eyes of this Congress, then exactly what is?

There is no business before them at this moment in our history that could possibly be more important than protecting our constitution from this administration.

The AG now claims that the DOJ is the final arbiter of what is and is not legal. What can "we the people" do should our elected representatives continue to shirk their responsibility to defend the constitution?

Justified reliance is a legal concept relating to contract law and commercial relationships. It has to do with enforcing a contract when one of the parties has acted (usually to their own detriment) based upon representations made by the other party. This concept normally comes into play in civil fraud cases.

Mukasey is avoiding the use of the word "immunity" as he fears it corresponds with "culpability". Nevertheless, the legal concept upon which he is drawing is known as qualified immunity.

Under qualified immunity, a government official who acts in the reasonable belief that his actions are not in violation of law (or the Constitution) is immune from civil prosecution. However if that official has acted in violation of established law (say the Geneva Conventions as ratified by the U.S. Senate, or the Constitution of the United States, or previous findings from any number of War Crimes Tribunals following WWII) then the civil immunity is swept away.

The existence and persistence of qualified civil immunity is a question for the judiciary, not the executive. Who has standing to bring a civil suit on this matter? Only the individuals on whom the procedure was used. Not sympathetic plaintiffs.

Mukasey is exercising his discretion. He can legally do this. The problem is, this is just another example of the arrogance of the administration in all their actions. They have no conscience and no shame.

Decent people who respect human dignity can only recoil in horror from the many war criminals and abominations who inhabit the highest levels of the U.S. government. Let us hope this infestation is ending.

Time to break out our squirrel guns boys and girls.

I guess The Geneva Convention doesn't apply to the CIA or the DOJ? Unreal!

This guy is useless; as useless as Pelosi and Reid and their neglect for holding up their oath of office to uphold the Constitution and IMPEACH these idiots!!!

Remember folks, "We the People" voted in the congressmen and senators who have decided to give our democracy away.

We will always have folks in high positions (Jackson, who decided it was okay to exterminate native americans... Johnson, who decided a Tonkin incident could be used to start a war when none occurred... Bush, who could care less if there was or was not WMDs). A reputable Congress, in these cases, could have changed our history (and present). When, however, we continue to vote in mobsters and opportunists, we will continue to have degradation of our heritage and sliding of our democracy... IMHO

Mukasey's position becomes even more outrageous when combined with the White House's belief that the President is the sole intepreter of his own Article II power and that the DOJ is bound by the President's determinations. (See earlier TPM post on this point).

Together, Mukasey's and the White House's propositions mean that the President can take almost any position, claim it stems from his Art. II power, and the DOJ will be bound by the President's interpretation. Then the DOJ will be bound to "approve" the position, thereby insulating the President and others from liability.

catsquisher: I'm not sure if you're being facetious or not.

In fact, Congress makes the laws and the Judiciary interprets them by ruling on how they apply in different circumstances.

OLC has no Constutional power to make or interpret laws. As for government employees being in an "impossible position" in times of crisis, it's not impossible at all. I've worked in gov't many times, and when someone asks you to do something unethical (or illegal) you say "no." End of impossible situation.

So Mukasey would have us believe if Bill committed an act that was criminal he could be prosecuted for it. Later, if George asked the AG (or his designee)if such an act was criminal and was told no, even though they were prosecuting Bill, George could not be prosecuted. I wonder if Bill could rely on what they told George?

Why this is so bad, so damn outrageous, is that it give a president the ability to break the law without fear. He can send people to break into a guy name Ellsberg's home or to break up the offices of TPM if the AG said OK.

Of course, THE REAL REASON Mukasey is doing this is to protect the aiders and abettors of the president and vice president from future criminal liability when the truth of what really happened in this administration comes out.

Under the Mukasey rule, Libby could never have been prosecuted.

Where are our candidates on this? We have two sitting Senators who are the top vote getters in this year's primaries and they have just been told that the Executive branch is the sole legal authority in the country. They have a fairly large platform to speak from and they need to start using it. While the Republicans are busy trying to love the one they're with, this is an opportune time to remind the public just what it is they're getting by keeping a Republican in the White House.

The key to Roberts and Alito was their expansive view of Executive Power. If they get anymore like those two on the bench, going to the Supreme Court might not matter.

Where are our candidates?

Mukasey considers himself infallible on matters of "justice" much like the pope is on matters of dogma to a Roman Catholic.
What I fail to understand is the astonishment experienced by the many.
Mukasey was a Cheney/Bush choice, his equivocations during his confirmation hearings made it clear that we could expect a continuation of the bloody circus perpetrated by these monsters. They share the same mindset. As long as they are not being tortured, it ain't torture, and so on...
This administration will continue to hide it's chicanery in plain sight. Why not? Who's going to stop them. Bitching bloggers?

So if John Mitchell said "It is o.k."?
There would be no grounds for an independent investigation???
This is very scary.

Peter,

Thank you very much for you insight.

Given the administration's success at avoiding getting any of these actions into the court system, it appears that the resolution of this concept is not very likely.

I truly wonder how long it is going to take the United States to "undo" the damage that has been done to our system of government by Cheney through his buffoon Bush?

The first step Congress needs to take is to refuse to pass a budget for the Executive Branch of the government, until these issues are resolved to the approval of Congress. Let those criminals work pro bono for the remainder of Bush's term in office. Sure, the GOP will filibuster such a budget in the Senate, but that still shuts down the Executive Branch - along with all other government offices.

On abuse.

If a defendant thought that she/he was of legal age, and engaged in a sexual activity, and she/he was eleven, the ignorance, misrepresentation of age, consent, or even the domicile of jurisdiction, is not a mitigating factor to prosecution.

What the DOJ is stating in effect is, that they consider it a 'grand-fathered' clause that since they adjudicated sex with a minor legal, that that is now non-subject to investigation, irrespective of existing laws to the contrary.

Or said this way, the Geneva convention states that sex with a minor is wrong, we agreed to that convention, have participated in prosecutions of this crime, but because we declare it legal if we perform the act ourselves it is so.

There is only one way to reconcile the books on torture and that is jury nullification.

And that is what Mukasey is preventing, he opines not that the US government can be jury nullified, he opines that instead the POTUS can legalize sex with furry animals, children, corpses, and plastic toys in the state of AL if he the Attorney General is instructed so.

That is the real failure here, it is as if the jury nullification argument, or the facts surrounding the waterboard, do not merit jury nullification, or Mukasey believes that the POTUS can make up laws as he pleases and whenever he pleases when it comes to laws and statuates involving abuse.

Mukasey is lucky I didn't follow his line of reasoning and take him down that ergo, then, path in questioning before the US public.

Mukasey states that there was jury nullification or the POTUS is above the law, which is it?

" The problem is, this is just another example of the arrogance of the administration in all their actions. They have no conscience and no shame. "

We'd all like the DOJ to "represent the law" (Congress) within the Executive, even against the Executive, and even against itself.

That only works if the Executive not only feels shame and respect for the opinions of Congress, but also fear of consequences.

The conservative attitude toward reward and punishment specifically advances the idea that only force and genuine consequences can change behavior. They really don't believe that anyone, including themselves, is, or should be motivated by considerations of raw power.

They have calculated that Congress finds it politically inconvenient to impeach, and thus that there are no benefits to representing the law or Congressional intent or the good opinion of mankind.

They have figured out that there can be a balance of power only if two parties are willing to excercise power, and they figured out that Congress is not willing to exercise power, hence no balance and no real constraints.

It's so easy to despise Bush and Gonzalez and now Mukasey. But we should reserve our real contempt for Pelosi, Reid and the enablers who took impeachment off the table, and in so doing announced that their would be no Congressional counterbalance to the most dangerous and fascistic administration in American history.

Bush and co. are just doing what people do when you give them power, and refuse to enforce limits. They are of course very bad, but what are there nominal parents (Congress) doing to stop those bad boys? Squat. Nada. They are worse than enablers... they are covert allies of fascism. Fascism came to America on their watch, and they said "let's not make a fuss.... might not be good for our re-election prospects."

A good part of Congress is more worthy of our contempt than even Bush and Cheney.

Allow me to say, madness. This is madness.

The executive branch has gone mad.

Attorney General Michael Mukasey is the poster boy for

Absolutely Disgraceful.

The biggest failure in the last seven years have been the Democrats. Our Founding Fathers anticipated that Bush-like power grabs would happen; they counted on having a vigorous factionalism and opposition to prevent it.

The Democrats have not only failed to provide such, they have facilitated Bush and his minions (e.g., Schumer, Feinstein).

Have any lawyers ever been tried for war crimes? If not, sounds like we could have a first. Seems to me that the OLC and anyone involved in the flawed opinion were accessories to at least three war crimes.

Mukasey won't investigate. But I bet that a crew at the international criminal court is busy exploring their options given the recent, bold admissons about torture.

Also- there are three individuals we know were waterboarded. What about prisoners whose stays in Gitmo and the black sites ended in their death? Were any of them tortured?

To those out there that say this concept would never stand up in a court of law, there are a few considerations.

First of all, if the DOJ decides in advance that a crime is not a crime, there will be no investigation, no prosecution and it will never see a court.

Second, are you really so sure that a Roberts court with Scalia saying cruel and unusual punishment has nothing to do with torture will uphold the law?

Third, has Congress shown any, even a little, willingness to stand up against this administration and its crimes?

Thanks again Chuck Schumer....

This is ridiculous. The Justice Department is not the U.S. military. Perhaps it's a defense in the military to state that you were only following orders. In a civilian government organization, it's not. "I was just following orders" is not a defense. End of story.

Why is it that any public servant who become affiliated with the Bush administration goes to pot? It's the reverse-Midas touch.

Seems to me that this is wrong on several levels:

1) It attributes to the executive branch the right to legislate which actual belongs to the legislative branch

2) It attributes to the executive branch the power to decide whether laws are constitutional which power actually belongs to the judicial branch.

3) It bestows the absolute powers of a monarch to the President in that it allows the President to use the Attorney General and the DOJ to provide cover and make legal anything the President wants.

4) It allows the President to blithely usurp the Rights and Powers of both the other branches of government to the point that what is left is no longer a constitutional democratic republic, but a dictatorship with a despot at its head.

5) Accepting Mukasey's view means that any Presidential appointee in certain positions in the Attorney General's Office can virtually create laws that trump anything that either house of Congress or even the Supreme Court decides.

Personally, I don't think even the Attorney General of the US has that power. Time to impeach Mukasey!

While I realize that I might be swimming upstream here, I think that if this were not the dysfunctional Bush administration (I know, and if my grandmother had wheels, she'd be a fire truck) Mukasey's statement would be reasonable; i.e. somebody who got an opinion from DoJ on a particular activity has a right to expect not to be prosecuted for acting in good faith accordance with that opinion. Any other system would just be an invitation to entrapment. This isn't the same thing as saying the activity was legal, it's just saying that in this one case, it will not be prosecuted. This is basic fairness and justice. And whoever issued the flawed opinion could expect some professional sanction of one kind or another.

But, we are talking about the dysfunctional Bush administration here and good faith is about the last thing I'd expect. So, a fair and just doctrine is being used for unfair and unjust ends, quelle suprise. We'll be generations repairing the damage that these wingnuts have done to just about everything they've touched.

You don't like it? Too bad. Complain too much and you can be considered supporting terrorism. And the President or any of his actors can walk into your house and shoot your entire family as they sit at the dinner table.

And it would all be perfectly legal, according to our Attorney General.

This isn't a country of laws anymore. It's a country of whims.

Hasn't anyone paid attention?

Mukasy isn't saying the law is what the Justice Department says it it.

He's saying, "The law is what WE say it is ... as long as WE maintain a majority on the Supreme Court."

Only after the impeachment of Scalia, etc. will the "law" have any meaning. It's been that way since December 12, 2000.

Pay attention.