Whitehouse to Mukasey: Why Not Investigate Torture?
As I noted earlier, Mukasey indicated early in the hearing that the criminal investigation of the CIA's destroyed torture tapes may well explore whether the interrogation techniques shown on those tapes were legal. But as Mukasey made clear, that may or may not happen.
So Sen. Sheldon Whitehouse (D-RI) wanted to know, is the Department of Justice investigating whether the sorts of techniques used by CIA agents were torture? And if not, why not?
Well, they aren't. And as for the why not, he and Mukasey went round and round on the question for two rounds of questioning. Here's Whitehouse's second try:
In this and the other exchange it became apparent that there were two justifications for Mukasey's stance.
The first you might call the real reason. It's one he succinctly described earlier when he said "I [am not] going to call into question what people do or have done, when it's not necessary to do so."
The second rested on a legal argument that was seemingly less self-justifying -- but he had real trouble getting it to stand up under Whitehouse's questioning.
The main issue, he argued, was whether the proper "authorizations" were given.
Well, isn't Mukasey's emphasis on "authorizations" really the Nuremberg defense? Whitehouse wanted to know. "I had authorization and therefore I'm immune from prosecution?"
MUKASEY: No, it's -- I had authorization, and let's take a look at the authorization, at the circumstances under which it was given, at what was done, at a whole wide range of variables that I don't have before me.WHITEHOUSE: Has that been done?
Has there been a thorough, independent analysis, under your administration, of whether or not any national of the United States is potentially in violation of Section 2340(a), as a result of...
MUKASEY: I don't start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now.
The two kept circling back to that same point. And the reason that the Department had launched an investigation into the destruction of the CIA tapes, he said, was that somebody had "destroyed tapes, apparently without proper authorization."
When Whitehouse painted Mukasey into his corner on this question, saying again that it was the "Nuremberg defense," Mukasey returned to his insistence that he wouldn't speculate without the facts before him. As he had a number of times, Mukasey declared that it wasn't clear that there was any reason for an investigation into possibly illegal torture. Whitehouse, incredulous, who sits on the intelligence committee and therefore has been briefed on the techniques, told him that was silly. All you had to do was read the newspapers, he said.
But Mukasey said that he's not going to look at past actions. And here we return to the real reason. That's the past, and to investigate what CIA agents did under prior authorizations (i.e. past legal opinions from the Justice Department), he said, would be to send a message:
...the message [to CIA agents] is, your authorization -- you, who did whatever you did -- your authorization is good only for so long as the tenure as the person who gave it, and maybe not even for that long.It's good as long as it's current; as long as it's within the limits that are recognized in the debate that's currently going on; as long as the political winds don't start to blow in the other direction.
He added later: "It's a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don't think that ought to be the message."
Update: Here's the transcript for Whitehouse's first round of questioning:
WHITEHOUSE: Thank you, Mr. Chairman.Attorney General Mukasey, referring to your January 29 letter, that we received yesterday, it strikes me that, in its mode of analysis, you have assumed the role, in essence, of, sort of, a corporate counsel to the executive branch.
The steps it takes are to ensure that there is no law-breaking currently going on. But the letter is unwilling to look back, as a corporate counsel might be unwilling to look back and dredge up past unpleasantness and risk potentially creating liability for the corporation.
I can see the role for that kind of analysis in a corporate context, but it strikes me that you are not just the corporate counsel to the executive branch.
WHITEHOUSE: You are also a prosecutor. You are the top law enforcement officer of the United States.
And prosecutors do look back. Prosecutors do investigate things that have happened in the past. They do dredge up the past in order to do justice.
And it's the mission statement of the Department of Justice, to seek just punishment for those guilty of unlawful behavior.
The famous decision of a Berger v. the United States emphasizes the duty of the U.S. government, a sovereignty whose interest is that justice shall be done. It is as much your duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Now, the president has said that we will investigate and prosecute all acts of torture. And you just said today if someone is guilty of violating the laws of the United States, they get prosecuted.
If you look at the United States Code, Section 2340a on torture: "Whoever outside the United States commits or attempts to commit torture shall be fined under this title, or imprisoned not more than 20 years, or both.
"And if death results from any person from conduct prohibited by this subsection shall be punished by death, or in prison for any term of years, or for life."
There is jurisdiction over the activity prohibited, if the alleged offender is a national of the United States, and a person who conspires to commit a offense under this section is subject to the same penalties, other than the penalty of death, as the penalty is prescribed for the offense.
So we have a statute on point. You are, I believe, the sole prosecuting authority for the statute, correct?
MUKASEY: I am...
WHITEHOUSE: The Department of Justice is.
MUKASEY: ... at the top of the Department of Justice, which is the sole prosecuting authority.
WHITEHOUSE: In reference to your letter, and in your prosecutor's responsibility -- not your advisory -- you have two hats: you advice the administration, you're sort of the corporate lawyer to the administration, you're also a prosecutor.
In the prosecutor's hat, could you tell me in what way, looking back, is there an absence of concrete facts and circumstances about waterboarding to even look at whether this statute should apply? Where is the absence of concrete facts and circumstances in the events of the past?
MUKASEY: First, let's talk about how many hats I wear. I wear one hat. It says attorney general of the United States. There are a number of duties under that, but as far as I'm concerned, there is no divided responsibility or divided loyalty; there is one responsibility.
WHITEHOUSE: All right. Well, let's talk about the two duties in the terms of one providing advice to the administration in the same way that a corporate counsel provides advice to a corporation...
MUKASEY: When it comes -- when it comes -- when it...
WHITEHOUSE: ... and being an independent prosecutor whose job is to look at the criminal laws and enforce them.
MUKASEY: When it comes to past conduct, one of the many questions involving past conduct, in addition to what was done, is, what authorizations were given, what authorizations were reasonably relied on?
My current evaluation of the statute, if there is one, has only tangentially to do with that, because if it has directly to do with that, then the message is, your authorization -- you, who did whatever you did -- your authorization is good only for so long as the tenure as the person who gave it, and maybe not even for that long.
MUKASEY: It's good as long as it's current; as long as it's within the limits that are recognized in the debate that's currently going on; as long as the political winds don't start to blow in the other direction.
(CROSSTALK)
MUKASEY: That's a message that I'm not going to send.
WHITEHOUSE: The message you send, otherwise, is that "I was only following orders" is a fine response.
MUKASEY: It's not a fine response. It was a response, at Nuremberg, that was found unlawful, as we both know.
WHITEHOUSE: And yet it's the one that you're crediting right now, "I had authorization and therefore I'm immune from prosecution."
Isn't that where that analysis leads...
MUKASEY: No, it's -- I had authorization, and let's take a look at the authorization, at the circumstances under which it was given, at what was done, at a whole wide range of variables that I don't have before me.
WHITEHOUSE: Has that been done?
Has there been a thorough, independent analysis, under your administration, of whether or not any national of the United States is potentially in violation of Section 2340(a), as a result of...
MUKASEY: I don't start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now.
WHITEHOUSE: Well, it just strikes me as odd that -- where the question of whether the taping, the destruction of the taping of an interrogation was a criminal act is at issue, there we have a counsel geared up to look at that question and make a solid determination of whether or not laws were violated.
But whether the underlying interrogation was itself a criminal act is not entitled to examination or investigation. Isn't that worth at least examination or investigation?
MUKASEY: I don't know that that's what I said. But the way that started was that we were told that there was a destruction. And a preliminary inquiry was made.
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.
WHITEHOUSE: Shouldn't that apply? There is evidence that there was an interrogation in this. There is a statute on point that could very well be applied.
If the bar is low, isn't worth taking a look at? Who was taking a look at this?
MUKASEY: You (inaudible) one point when you say that there was evidence that there was an interrogation. Evidence of an interrogation and evidence of a crime are two different things.
WHITEHOUSE: The way you said it was there was evidence of a destruction. The destruction could or could not be a crime, depending on how facts apply to law. The interrogation could or could not be a crime, depending on how facts apply to law.
There really isn't a principle distinction between these two.
MUKASEY: I think there's a principle distinction when the head of the CIA tells you that somebody destroyed tapes, apparently without proper authorization, which is what he disclosed.
WHITEHOUSE: And so, I don't see how that gets you anywhere -- I don't see how...
MUKASEY: When all that started -- all that started was a preliminary inquiry, and a preliminary inquiry showed the possibility that a crime was committed, and then we started an investigation.
WHITEHOUSE: I don't see how that resolves the Nuremberg defense problem.
If the reason that you're giving us for investigating the destruction of the tapes but not investigating the underlying interrogation is that it appears that the interrogators were following orders, and it appears that the destroyers were not, isn't that the Nuremberg defense?
MUKASEY: No, because you're assuming what was on the tapes. You're assuming that the interrogation was unlawful.
WHITEHOUSE: I'm not assuming any such thing anymore than you would be assuming that the destruction was unlawful. What I'm suggesting is that you should investigate it and there should be at least somebody who at least takes a look at this in a principled, thoughtful way.
And if the answer comes back is, "No, there was not a crime, and here's why," then we can lay the question to rest.
WHITEHOUSE: But if what you're telling me is that this hasn't even been investigated, although the destruction of the tapes is being investigated, it strikes me that there's a split standard there, and I'm trying to understand why.
MUKASEY: It seems to me that since there is an ongoing investigation into the destruction of the tapes, that may well disclose what was on them. And it may also well disclose whether it was anything further to be investigated. I think we ought to await that.
WHITEHOUSE: The theory -- have I used my time?
LEAHY: You have.
WHITEHOUSE: I apologize. I will desist.
And here's the transcript for Whitehouse's second round of questioning:
WHITEHOUSE: Thank you, Mr. Chairman.Thank you, Attorney General.
I guess I'm trying to sort of sort out the process question related to the determination of whether waterboarding is torture. In terms of your advisory responsibilities to the government, you've said you're not going to engage those because there is not a set of concrete facts or circumstances that necessitate a determination because you've disclosed to us that waterboarding is not part of the CIA's enhanced interrogation technique regime.
That still leaves open this question whether under 2340(a), which uses the term torture specifically in the statute, there are concrete facts and circumstances that would necessitate or justify an analysis toward that purpose. Given that the concrete facts and circumstances justification evaporates in terms of 2340(a) in that there, arguably, whatever it is, it is, and you can go back and find it. It's as concrete as the past ever is.
I'm trying to determine if that is taking place, the analysis, if you are waiting, as you suggested, for John Durham's investigation to look more into what happened, and then it would kick off from that, once the preliminary determination were made, or if there has been a policy determination made that because there has been a claim of authority, there will be no analysis, there will be no investigation, there will be no determination, or some fourth category.
What is the process for coming to this decision vis-a-vis 2340(a)?
MUKASEY: The process for coming to any determination under any criminal statute is that facts come to the attention of the department that warrant an investigation.
MUKASEY: As of now, so far as I'm aware, John Durham's investigation is into the destruction of the tapes. That may very will engage the question of what was on the tapes, if what was on the tapes was something that is barred by the torture statute -- that is...
WHITEHOUSE: Couldn't you and I, but for the non-classified nature of this particular setting, engage in a very concrete and factual discussion about subject matter that would at least give cause for inquiry?
MUKASEY: We could engage in a discussion. It would not be a concrete and factual discussion because we would be talking about, "If this, if that, if the other."
And we would...
WHITEHOUSE: In a classified setting.
MUKASEY: In a classified setting. That's all we would be talking about.
WHITEHOUSE: It may or may not be if.
Beg your pardon?
WHITEHOUSE: In a classified setting, it may or may not be an if.
MUKASEY: I'm not entirely sure what that suggests.
WHITEHOUSE: Well, I'm trying to be careful not to step outside of the boundaries that I'm obliged to pursue -- to honor here of not being -- not disclosing classified information.
At the same time, I'm trying to get some more information because I don't think it's fair to say that nobody has any basis from anywhere. I mean, just read The New York Times, read The Washington Post, read what people have said on television -- there's been a former CIA official who has been on the airwaves.
If that's not enough to at least open the first red flag as to whether an inquiry should go forward, I don't know what on earth could be. And if -- so, that answer to me is just totally not credible.
So, then the question is, you know, where do we stand? Because I think anybody who even has a public view of what's going on would suggest that there's something that might at least merit the beginning of inquiry as to whether an investigation might be opened.
MUKASEY: All of that depends on whether certification was given, whether permission was given and whether it was permissibly relied on. And it would not -- it should not turn on one person's current view of what the statute requires or doesn't require, because if it does, the message is, it all changes.
WHITEHOUSE: But aren't there two questions here? There is no exemption under 2340(a) depending on whether the conduct was authorized by a supervisory official or not. There is no Nuremberg defense built into this criminal statute.
So, if you are to apply it, it would strike me that you would want to apply it not before an investigation has taken place, but once an investigation had reached a point where you were able to say, "OK, here's what we think took place, here is whether or not it's in violation and here is the legal analysis as to whether or not mens rea is adequate, given the nature of the authorization."
But it strikes me that you're telling me that nothing in that process is taking place because the certification alone obviates any further inquiry irrespective of how developed the facts are.
And I'm just trying to get, which is this? Is it that there aren't facts well-developed? That doesn't seem credible. Is it because there's authorization, we're not going to look at this no matter what? If that's your position, fine, but let's just say so and then I'll understand.
MUKASEY: That's not my position.
WHITEHOUSE: What is your position?
MUKASEY: My position is that there is an ongoing investigation and that I'm not going to speculate on what might or might not have happened, particularly with regard to authorizations.
WHITEHOUSE: But the ongoing investigation, as far as we know, is only into the destruction of tapes. It has nothing to do with the underlying interrogation, unless you're telling me that that's the forum. Is that the forum in which this will get decided?
MUKASEY: That is in part dependent on what John Durham's investigation shows.
WHITEHOUSE: Well, let's hypothesize that a little further. If it shows that waterboarding took place...
MUKASEY: Let's not hypothesize anything.
WHITEHOUSE: Well, there's only two choices. It's not going to take us a long time to discuss the alternatives, either it did or it didn't.
MUKASEY: It's not a question of it taking a long time. It's a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don't think that ought to be the message.
WHITEHOUSE: Well, as an American -- my light's just gone on. If I may, I would like to thank you for the -- and applaud you for the re-erection of the fire wall between the Department of Justice and the White House. I thought the manner in which it was done was excellent. And I'm sorry we seem to be at loggerheads again on this subject. But I didn't want to close my questioning without letting you know that, in that area and many others, I appreciate and applaud the work you are doing at the Department of Justice.
MUKASEY: This is a good faith exchange, and I'm not suggesting that if you hadn't said that, that it would -- that there would somehow be a problem. I appreciate that you said it. But...
WHITEHOUSE: I also want to be fair.
MUKASEY: Me, too.
Comments (28)
Utopia wrote on January 30, 2008 5:32 PM:Why doesn't someone tell Mukasey he's not a judge? He's not there to judge a set of facts. He's there to uphold the Constitution and the laws of the U.S. Everything else is obfuscation and he knows it. He's just an older version of Alberto Gonzales.
But, the Senate created this situation by kowtowing to the Administration and confirming Mukasey so now they have to deal with it. Too bad it affects the rest of us.
U
TheraP wrote on January 30, 2008 5:34 PM:Mukasey: See, I'm new here. And we're starting with a blank slate.
But it literally sounds like he's saying that things can be legal or illegal within little chunks of time... depending on which way the wind is blowing...
Won't that sound nice in The Hague?
Lloyd wrote on January 30, 2008 5:35 PM:There is no such thing as proper authorization for perpetrating torture.
Utopia wrote on January 30, 2008 5:37 PM:It's the Quantum Theory of Torture. Everything is both legal and illegal and the moment you try to figure which, it all just disintegrates. Beautiful. I wonder if Mukasey will get a Nobel prize for his work?
U
Cheek and Bluster wrote on January 30, 2008 5:57 PM:When Whitehouse painted Mukasey into his corner on this question, saying again that it was the "Nuremberg defense," Mukasey returned to his insistence that he wouldn't speculate without the facts before him...
But Mukasey said that he's not going to look at past actions.
Wow. Did he just go from the Nuremberg defense to the McGwire defense without refueling?
That is *range*, people.
sailmaker wrote on January 30, 2008 5:57 PM:Let's see... the Geneva Conventions are 'quaint' and therefore not a standard. The Army Field Manual (no matter which one is referred to, new or revised) is not a standard to which the CIA can be held. The laws of the US do not apply to Americans on foreign turf. And the laws of which ever country the CIA is in do not apply to CIA Americans when they are torturing, or drug running, or selling nuclear secrets. Nice black hole there. Plus the President can attach signing statements invalidating or refusing to enforce the laws that Congress DOES manage to pass. They started out in 2001 as they intended to continue, masticating the rule of law until it is now a wet noodle that does whatever they say it does.
mo2 wrote on January 30, 2008 5:59 PM:If Bush and Cheney have the sole discretion to say whether waterboarding is acceptable in any single instance, and since they have obviously determined that it was acceptable because it has been done, then will Mukasey look at the individual instances and read the documentation that was presented to/by Bush and Cheney for each indivual person who was waterboarded?
He says that there is a standard that must be met before the heinous act can be done. Will he please tell the Senate in what way the three people we know were waterboarded met that standard?
acf wrote on January 30, 2008 6:43 PM:This sounds remarkably like Mukasey acting like a stonewall, providing another line of defense for Bush - Cheney.
johnnydoughey wrote on January 30, 2008 6:45 PM:I've been gone for a couple of weeks...
I see nothing has changed. I think I'll try a month next time, which brings me to this point.
We've been a democracy for over two and a quarter centuries.
During this time Congress, representing both Democrats and Republicans have not felt the need to standardize two of the most important items fundamental to the success and continuation of any "reputable" (not that I am implying that we have a reputable government in Washington, folks) business venture... accounting and auditing.
Apparently, Congress (both Republican and Democrat led) has never believed that "We the People" deserve even the rudimentary dignity of having a standardized way of telling and punishing those who decide a democracy is just an easy way to steal!
Anybody out there up to DEMANDING specific results from the crooks BEFORE giving them the keys to our kingdom... or at least the remnant which we have left?
No... I didn't think so...
Anonymous wrote on January 30, 2008 7:05 PM:I find the DoJ AG response troubling for several reasons. One of them TPMM cited: The Nuremberg defense.
Second, the AG appers to have a conflict: As a Judge, he appears to have had a requirement to have reviewed whether the FISA-captured information was used as a pretext for this abuse.
Third, the AG appears focused, as does Congress on the irrelevant issue of "torture": Geneva prohibits _abuse_: whether waterboarding is or is't "torture" is the wrong track. Self-evidently, waterboarding is abuse. AG's insistentce that this was "authorized" amounts to a slap against Geneva; and the absurd notion the President -- or someone else -- "authorized" war crimes. That isn't a defense, but _evidence_. AG needs to disclosed, as a witness, _who_ authorized the war crimes. AG needs to recuse himself.
Fourth, going back to Nuremberg, civilian policy makers were prosecuted for war crimes, and judges were indicted at the Justice Trial. AG's responses today suggest that a war crimes investigaiton needs to be opened.
Fifth, the purpose of having prosecutors is to enforce the law under the Exeuctive Branch. When the Executive Branch will not enforce the law, the Framers intended the legilsature -- through impeachment -- to have a tool to remove agents the President refused to remove. Taking impeachment "off the table" and the decision to "not impeach" leaves us back where the Nuremberg Justice Trial was: A country that refuses to either impeach or prosecute war crimes is not civilized. AG's assertions about the rule of law, investigations, and duty are meaningless when the basice premise of Nuremberg is thrown out the window.
I would prefer Congress open an investigation into the AG's response. Given the Congress' lack of interest in enforcing the law, and the DOJ AG's assertion that he will not enforce the law on this narrow issue as well -- through investigations -- I would ask that the State Attorney GEnerals be immediately contacted for purposes of drafting indictments gaainst the AG and Members of Congress for their joint decision to not enforce Geneva. If the State AGs are not going to do this, then we need to broaden the list of prosecutions/indictments to include the State AGs over alleged breaches of their oath of office, and their decision to "not protect" the Constitution against domestic enemies.
Either these people in the DOJ, Congress, and the State level enforce the law; or they are subject to prosecution for refusing to fully assert their oath. Either or. Time to stop the legislative hearings, and get on with the war crimes indictments: Either investigate to defend the Constitution and Geneva obligations as the SUpreme Law; or those who refuse, but have a duty to act, could become targets for that prosecution effort. Let's stop pretending there are legitimate excuses for inaction on these issues of Geneva: If the US refuses to enforce the law, other nations may take similarly situated persons and treat them the same: Waterboard them without trial, access to evidence, or ability to have access to legal counsel. If that's what the US goernment officials want, then that is evidence of a mental reservation, not a legitimate defense for malfeasance or inaction.
Please contact your State AG's and share with them the above. Time for the States and local citizens to do what the US Congress and AG refuse to do: Fully defend the US Constitution.
Anonymous wrote on January 30, 2008 7:37 PM:This is non-sense: "All of that depends on whether certification was given, whether permission was given and whether it was permissibly relied on."
AG is acting as if this is speculative: Whether "certification" was or wasn't given; whether "permission" was or wasn't given; and whether "permissibly relied on" did or didn't occur. If this is "uncertain" why is there no AG plan to find out the answers? He appears to be using the "lack of infofmration" about these issues to assert, in my view incorrectly, that "no investigation" is needed.
That's, in my personal opinion, idiotic: It acts that we not _start_ an investigation until those things are known; yet, wet have the _certain_ outcome: A tape of alleged illegal abuse.
Whether certification, permission, or reliance existed is _not_ to be decided as a _preliminary_ matter _before_ starting the investigatin; but the _conclusions_ for the _court_ to make on whether to adjudicate guilt or innocense.
I would respectuflly ask the Congress to reconsider the AG's responses and ask if he's fully removed his Judicial hat; and ask that he reconsider his role: His role, is to accept that there was a a tape; there were interrogations; and the _questions that need to be investigated_ include before presenting the facts to the Court:
A. Was there evidence on the tape;
B. Was the tape destroyed to hide that evidence from the court;
C. Who provided "permission" to conduct prisoner abuse
D. Who relied on "permissions" to implement the abuse
E. Who raised the issue of "certification" -- was this _before_ or _after_ the alleged abuse was imposed on the prisoner;
F. The question of "permissibly relied upon" isn't the question, but whether the _defendant_ as a _defense_ can say that _they_ reasonably relied upon.
I'm concerned that the AG is acting as a defense counsel in re F. abuse, as it is the obligation of the _defense_ to prove that the orders were reasonable; that they defendant _did_ reasonably rely on orders; and that there was _no_ hint that the direction, orders, and guidance was illegal. This is a burden the defendant needs to provide at trial as a defense, and not an issue for the AG to consider as to whether to _investigate_.
It cannot be seriously argued by _defense_ counsel that permission, certificaction, or legality of orders existed when Geneva bars _all abuse_. It appears the AG is pretending, out of convenience as are the alleged defendants, that there is "confusion" about whether waterboarding is or isn't torture as a _preliminary_ issue, as a bar to all investigations. Non-sense. The reverse is true: Geneva, in barring all abuse, would put the burden on the defendant to prove at trial the orders were reasonable. Yet, tape destruction is evidence that is contrary to intersts: The tape was destroyed _after_ the court ordered it be retained; adverse inferences in cases of spoliation are relevant: The tape was destroyed to hide relevant evidence to answer the questions of certification, permissions, and defenses -- the act itself is evidence the certification was not lawful; the permissions were contrary to Geneva; and the reliance was not reasonable.
LarryB wrote on January 30, 2008 7:37 PM:In an awful way, I see Mukasey's point. The CIA was explicitly authorized to torture "Al Queda" detanees by their chain of command. No one is suggesting that they were operating as rogue agents. Given that, I understand his reluctance to embark on investigations that would either scapegoat the little guys "fighting" on the front lines or, if pursued, inevitably lead to the oval office and a nasty Constitutional crisis. Left unsaid was the reality that crimes at this level only have political solutions. Impeach!
Anonymous wrote on January 30, 2008 7:41 PM:The fundamental qustion is: Has the President or anyone "authorized" the CIA to commit Geneva violations?
If they're waterboarding, yes.
Anonymous wrote on January 30, 2008 8:00 PM:I'm surprised to hear of the uncertainty, given the Geneva issues: " But as Mukasey made clear, that may or may not happen." How can it be _unclear_ whether they need to _investigate_ to determine whether the _conduct on the tape_ was or wasn't illegal? If there's lack of clarity, then an investigation needs to occur to _determine_ that answer. Or what method does the AG's staff divine to arrive at a clear answer outside an investigation?
Anonymous wrote on January 30, 2008 8:10 PM:LarryB wrote on January 30, 2008 7:37 PM
"The CIA was explicitly authorized to torture "Al Queda" detanees by their chain of command. No one is suggesting that they were operating as rogue agents."
This starts with a false permise: That the basis for the analysis is "torture". Incorrect, the issue under _Geneva_ is whether there was or wasn't _abuse_. How can anyone say that the CIA was _lawfully_ "authorized" to commit war crimes, and impose abuse? That's absurd.
The way the CIA operates overseas: They violte the law all the time. But the issues of war crimes, when not resolved, has a boomerang effect: Each time the US government agent commits a war crime, but the US refuses to prosecute, other nations may through the principle of reciprocity and retalation commit _like_ abuses against similarly situated prisoners.
The problem: The US, by detaining and abusing non-combatant civilians, held them without access to lawyers, and on accusation alone without evidence, is that other nations' fighters may do the same to US persons accused, without getting access to lawyers or evidence of being illegal combatants. Any American could be charged as being an illegal combatant, and abused.
People who "authorize the CIA to commit Geneva violations" are issuing illegal orders; it's the burden of the CIA agent _at trial_ to show that the order was reasonable; that they rasonably relied on that order; and that the order was lawful. Yet, when tapes are destroyed, it suggests the opposite: That they knew the orders were "authorizing" illegal abuse; that they could not reasonably rely on the defense of "legality" and "reasonableness" to justify following direction to violate Geneva; and that they knew, or should have known, the expectation that the evidence of that abuse would be hidden/destroyed was not reasonable as "clearance" to proceed with the abuse.
It appears the CIA agents believed that they thought the tape would never see the light of day; that someone working with the tapes made some sort of certification that they would not disclose the content of the tapes; and that the CIA agents believed that they could rely on this certification of non-disclosure as a shield to further discovery. Once we're moving outside the narrow lane of covert operations, but expanding to the broader umbrella of war crimes, simple agreements bewteen CIA agents and other contractors are not arguably enforceable.
If the AG will not investigate the tape's destruction or the contents of the tape, then he needs to answer the opposite issue: Whether he will investigate the _disclosure_ of the tape, and the fact that the tape was destroyed. If there was "no crime" in destroying the tape, and the tapes' contents were "not a problem," then the issue turns on its head: Who has allegedly "disclosed" the exitence of the tape? That question won't get answered as the disclosure of alleged war crimes evidence is not, in theory, actionable. The opposite is true: There is likely a statute the DoD-DoJ-CIA personnel were relying on to justify disclosing the existence of the tape.
Freewheelin' Freddie wrote on January 30, 2008 8:45 PM:I can hear Sheldon stretching his spine from here! Good to see a vertebrate again.
brian wrote on January 30, 2008 10:31 PM:Torture, in this case waterboarding, is justified by its fans through the "ticking time bomb scenario" ...
Has anyone followed this to its logical conclusion ? In the TTBS there is not a moment to lose - the critical information must be extracted rapidly from the prisoner.
Therefore, there must be emergency torture crews, with equipment, standing by at all times as firemen do.
Therefore in Afghanistan and in Iraq and in our own country we must have ample supplies of water, boards, leather straps, blindfolds - all the accoutrements - at the ready.
Torturers, too, must be poised to start torturing at a moment's notice, with emergency vehicles to speed the personnel to the site ... quickly, quickly they must start the waterboarding ...
Is there time to throw the guy into a cell, make him lay around for a few weeks in solitary, fly him here and there in chartered jets, check him in to this facility and that black site ? No, sir, there is not.
The TTBS is a nonsense scenario. Some people just like the idea of tormenting bad guys that are picked up by our military. The bad guys do not even have to be bad - they just have to be despised by somebody.
Duck Soup wrote on January 30, 2008 10:33 PM:Hey, I've got a crazy idea. How about we vote for someone who will bring some principles back into our government which we pay for and we elect?
Obama is the one to do it. Hillary has proven that she will not and cannot. Place your vote and read some more on this topic if you feel like it at http://www.dailykos.com/storyonly/2008/1/27/14512/4399/221/444226
Roberta wrote on January 30, 2008 11:04 PM:"It's a question of telling agents out there that we are investigating the CIA based on speculation about what happened and whether they got proper authorizations. And I don't think that ought to be the message."
I don't interpret anything Mukasey said as trying to protect the agents who may or may not have tortured prisoners under orders from their superiors. Their superiors got their orders from above, and "above" is ultimately the President's office.
In investigating the CIA's participation in alleged acts of torture (which would have precipitated the urgency of destroying the tapes, in spite of a court order for evidence and wishy-washy recommendations NOT to), what would come out would be the chain of authorization, and that is the last thing that Buscheney are going to allow Gen. Mukasey to do.
Naming the links in the chain (even in a classified setting) would provide unequivocal evidence of Geneva violations.
Please don't be led astray by the red herring of worrying about the agents. In spite of their Nuremberg defense for their actions, I can't see how it benefits anyone to prosecute them, when the real criminals are those who gave the orders. Yes, it's bad to follow orders you know are wrong, but it's hard to know the orders are wrong when patriotic agents are given those orders by the leader of the land of the free and the home of the brave.
It's much, much worse to give those orders, especially when you ARE the leader of the land of the free and the home of the brave--or at least what formerly was that land and home.
And on another note, Whitehouse is my god. Every senator should cede his time for questioning over to Whitehouse. He accomplishes a whole lot more than asking obvious questions and expressing righteous indignation when Mukasey won't answer them. Whitehouse penetrated Mukasey's imperturbability as no one else did--or maybe can. I would so hate to be on the wrong side of his stiletto-like questioning.
Utopia wrote on January 30, 2008 11:39 PM:Why doesn't the Committee just go into closed session and ask Mukasey all those things he's worried our enemies will learn? What dodge will he use for that?
U
steambomb wrote on January 30, 2008 11:42 PM:I told you all that Mukasey has spent the better part of the last 10 years protecting white collar criminals from prosecution. I told you that he would as attorney general be protecting the white collar criminal in the whitehouse. I dont mean to offend you all but I am wondering why anyone would waste mental thought on these corrupt bastards anymore....
jimbo92107 wrote on January 31, 2008 12:34 AM:And let's see...who were the defendants at the Nuremberg trials?
Oh yeah. Nazis.
Anonymous wrote on January 31, 2008 12:54 AM:I hope the public can see the absurdity of this: "Whitehouse to Mukasey: Why Not Investigate Torture?": This, from a Congress that refuses to investigate the President. Public to Congress, "Why, before asking the AG to investigate, are you not investigating?"
There is nothing stopping the Senators asking these questions of the AG from communicating to the House: "We would like for you to investigate the President." Inter-branch communications are not binding; but they are possible. The Senate needs to go on the record: They've asked the AG why he's not investigating; they need to do the same with the House: "Why is there no investigation of this President's impeachable offenses?" Indeed, the Senate committees do have the power to, independent of the House, to review the illegal activity. But rather than conduct fact finding, they're pleading with a separate branch of government. That is not a check, that is assent and subservience by the Senate to the AG. Enough!
Indeed, when Congress refuses to investigate the President's impeachable offenses, why should the AG bother responding to questions about why the AG is or isn't investigating. This Congress, rightly or wrongly, has said with its words and actions: "We are not going to investigate; but we are going to waste time asking why the AG isn't investigating what we refuse to independently investigate." Hypocrisy!
The Congress is a separate and co-equal branch of government: It does not report to the AG's timelines. Yet, this appears lost on these Members of Congress despite their oath to enforce the Constitution against domestic enemies.
The public is not well served by a Congress that, with the promise of elections, does not deliver. There is no need for the Congress to "discuss with the AG whether or not to investigate": There are standing committees in Congress that can independently investigate, but refuse.
The pattern of abuses aren't telling us new information: It's from the same criminal element recklessly running this nation's governance into the ground. How dare the Senate lazily inquire as to whether the AG is or isn't doing something, _while_ the Congress continues to vote for war funding to export a system of governance that even the US Congress doesn't take seriously.
The Congress well knows the importance of investigations, but refuses. Inaction, on top of an oath compelling a defense of the Constitution and Geneva Conventions, is not a defense but evidence of alleged malfeasance in re war crimes.
Some may believe the public is stuck with this charade of governance. We're not. There are ways to punish lawfully the Members of Congress: Grand Jury indictments can be issued against Members of Congress for their alleged malfeasance. Time for the public to move lawfully outside Congress, the Executive Branch, and courts, and work directly with the grand juries to organize evidence related to Member of Congress alleged complicity with these war crimes.
Nuremberg established that new laws can codify retroactively things that people should know are illegal. Before Nuremberg there were no explicit laws binding Geneva as a legal obligation to the specific jurists. Similarly, in the wake of this disaster, other laws can be retroactively codified that will fully promulgate the legal responsibilities of the legislature: Things that they should have known to do, but refused.
Arguably, any agreement to not investigate is not one that the courts or Congress or the President will dare to examine seriously: They view inaction as a higher calling. This charade needs to end: Inaction is evidence of not fully meeting one's 5 USC 3331 oath of office obligations. The public needs to openly discuss gathering evidence of Member of Congress alleged 5 USC 3331 violations; prepare indictments; and remind the Members of Congress: Either you do what you are expecting of the AG -- to lead an investigation; or you're facing the prospect of jail time where you can think about what you should have done, but refused.
We could go on and on about how the Secret Service daily protects the Magna Carta; how the sworn officers faithfully defend the Constitution each night as it descends into the bowels of the capitol. The sworn officers of the Capitol Police, Secret Service, and other uniformed officers need to examine their oath: Are they fully defending the Constitution and the Supreme Law against all domestic enemies in all the branches? The case can be made that they know full well there's a problem; and are not -- as they could -- securing search warrants to prosecute the President, Members of Congress, and lawyers for their alleged complicity for these war crimes.
The law isn't something people take into their own hands. It is something that should daily be asserted as a starting point; not as a questionable, debatable, possibility. This Congress and AG appear to have it backwards: The oath binds them to certainty; and this late in the game -- 2008, seven years after this non-sense started -- it's not credible that the Senate and AG are still debating whether or not there should be an investigation. This late in the game, the reasonable grand jury would conclude: The prosecutions of Members of Congress and this second AG are long overdue.
Then let's have that. Let's see some leadership by the unformed officers of the Secret Service; and let's see some real discussion within the Senate and House Sergeant at Arms office: How much longer are you going to let this arrogance, reckless disregard for law compel you to remain silent, not take action, and refuse to serve search warrants upon all three branches of government? Daily, American citizens -- on accusation alone -- are forced to assent to this abusive intrusion _without warrants_. Surely, the law enforcement professionals policing the nation's capital could discuss and secure warrants to defend this Constitution against the domestic enemies wandering, confused in the District of Columbia.
It is time to stop shirking, and not fear whether we are offending anyone. This leadership has offended its oath, the rule of law, and its good name: As a Republic. But we the People are above this. As _the_ sovereign, We the People can work with the grand juries, guide them, and well communicate that we fully support grand jury indictments against the Members of Congress who know enough to challenge the AG on investigations, but feign confusion over whether investigations should or shouldn't occur against the President. We don't have to wait for the 2008 election, because this process isn't linked with the voters: It's linked with We the People and oversight. If it takes one week, or four years is irrelevant: It needs to start now. Not maybe, not perhaps, not "when we feel like it", but now.
Anonymous wrote on January 31, 2008 1:06 AM:I have trouble with this assertion: "Please don't be led astray by the red herring of worrying about the agents. In spite of their Nuremberg defense for their actions, I can't see how it benefits anyone to prosecute them, when the real criminals are those who gave the orders."
There's nothing before us -- as a public, outside the investigation -- to know whether the agents are or are not red herrings; or that they should be given preference to go after "bigger fish." That asks that we ignore the current decisions to not go after the big fish.
The above approach would ask that we ignore the agents as "red herrings"; but pretend that the real trail is somewhere else. Indeed, Congress and the AG refuse to follow the real trail. Getting them to awaken using a red herring appears to be a good start. If they're going in the wrong direction, they might adjust; but if they're still asleep, their idea of adjusting is to roll over.
Anonymous wrote on January 31, 2008 1:33 AM:The Senate debate on telecom immunity fails to consider the alternative: That, without immunity, there must be an investigation into criminal activity. Time for the telecom immunity-debate to discuss also the AG's refusal to investigate all alleged illegal activity in re the contents of the CIA tape.
These are not separate incidents, but part of the same pattern of abuses which warrant an impeachment investigation.
Virginia Simson wrote on January 31, 2008 3:50 AM:Okay - so the effort for impeachment falls (thank you SO much, Nancy! Jerry! John!) then there are problems I see already
1. the American people don't know, in particular about war crimes (they've been busy watching the corruption afterall which is extremely white collar in their minds, and since it's politicians is to be expected). We have a whole generation that knows little or nothing about Nuremberg - yet. the euphemism, the spin worked. Ask someone in the 7/11 if they know that these are POWs yourself. It's just not perceived as a CRIME to do what's being done. As for the corruption part - most figure that's what DC pols ALL do.
2. the people who are the victims of torture and kidnap still remain faceless - although FINALLY a website is being constructed for POWs called freedetainees.org (they could use a few buck$ after she gets a tip jar up) And they didn't see the CIA torturer as a torturer either - that's WHY the tapes disappeared. Good spin by the CIA even they are now furious with the guy they "handled".
3. there has been so much damage done by the RP people on the internet saying that the rule of law is a stoopid thing to pursue since the US is a corporation and ALL lawyers are simply corporate employess. I get emails and comments on the threads .. People do not know what they need to know. Cointelpro has been very effective.
POINT: a real thorough FAQ needs to be assembled that (pissed off) people can use. Something downloadable and easy to duplicate and a DVd and hard hitting youtube video made that addresses issues like this. You know, clearly outlining people's rights, providing a glossary, misinformation smashed - that can be handed out in malls. The petitions are educational and talking with people is what counts, but having something to be able to refer to for those who want to ger involved would be very helpful. The new "activist" ain't gonna read a book. This idea George Washington blog had about BANKRUPTING OUR FUTURE is a good one - these warprofiteers have bankrupting everyone's future and that makes it EVERYONE's interest to DO soemthing. People do not want to hand their kids a lawless world but they can't see how these Big Crooks have set that up for the future - YET.
People still think impeachment is INDICTMENT and don't understand the concept of disclosure.
4. After years of this screaming on my part, I really sometimes think that some organizations' heads don't actually care that much to see these people fry for what they've done. They're mic hogs.
Too many people get on TV and go on and on about the DC politics of it all and forget to appeal to the people who are watching that they CAN do something and I get those comments when I push RULE OF LAW in people's faces. People no longer trust big name activists - they don't see them in the streets handing out pamphlets. It's as if its just another form of infotainment.
The RP campaign is the worst of the lot as Dr. No Impeachment keeps them twisting without any solutions until His Saintliness gets elected. God help us if another version of rePUG gets in - no offense to good rePUGs here - but this RP internet variety is certainly quite ignorant. Not stoopid, just ignorant.
What I am suggesting is a major shift in "marketing" and a more GLOBAL approach - one that shows how it's all interconnected and empowers ALL interested partie, including NON US citizens. I cannot crack the orgs to help me get a petition going for nonUS citizens. More pressure is more pressure.
It's time to harnass the energy that really is out there. It's being diverted IMHO. The Sibel stuff is ever so slowly percolating ..
http://www.youtube.com/watch?v=cn5oOxMJ73k
It takes me a full 15 minutes to explain orally to someone why Nancy is a problem to a fairly literate person. They simply cannot understand the dynamics at "play". How can one women (plus John Conyers) stop all the people in the world from seeing justice, that's what people want to know. In the face of this level of genocide and crimes against humanity they wonder what CAN be done. And the mass of people have no way to confront state AGs without some real guidance.
We need to get people saying "Do the RIGHT thing" - worked for me in my refugee case which it looked like would be impossible to win. Anyone can take up that battle cry.
Sorry to run on, but being in Canada I see this slightly differently than you do. I hate to see the momentum built so far get lost ...
Virginia wrote on January 31, 2008 3:55 AM:http://www.nationalpriorities.org/index.php
BANKRUPTING OUR FUTURE??
wilderwood wrote on January 31, 2008 5:26 AM:Let's not forget this: no evidence exists that torture works. Not only that, but in the one case routinely cited as a necessary justification, the ticking-time-bomb scenario, there is also no logic to support it. If I'm a terrorist, and know where the bomb is, and you torture me, I'm going to tell you the wrong answer. Then, when the bomb goes off, you'll perhaps be angry with me for not telling you the truth. Then it's too late for the torture to be justified as a way of preventing the disaster, and you'll be forced either to kill or torture me as punishment--either of which would be illegal. I was ready to die anyway, so it doesn't matter if you kill me. If you torture me, you're doing so without trial and on the face you're going to violate the Constitution's prohibition on cruel and unusual punishment. And in any case--even if you kill or torture me after the bomb goes off, the fact remains that torturing me didn't get you what you wanted.