Also published at my web magazine, The Public Record.
When it comes to protecting George W. Bush and his administration, Attorney General Michael Mukasey is stretching legal arguments as far as his predecessor Alberto Gonzales ever did – now even invoking the “Nixon Defense” for justifying presidential wrongdoing.
This week, Mukasey argued that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.
"There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said during a Dec. 3 roundtable discussion with reporters.
Mukasey’s argument is, in essence, the same as Richard Nixon’s infamous declaration in his 1977 interview with David Frost that – in the context of Nixon’s illegal wiretappings, black-bag jobs and infiltration of antiwar groups – “when the President does it, that means that it is not illegal.”
Nixon's approval of the so-called Huston Plan, which proposed these actions against adversaries deemed national security threats, became one of the articles of impeachment filed against Nixon before his resignation in August 1974. Nixon defended his decision as necessary to protect the country.
In the wake of the 9/11 attacks, President Bush, his White House legal advisers – and now Attorney General Mukasey – resurrected Nixon’s concept of a President operating above the law to defend the nation.
As with the “Nixon Defense,” Mukasey maintains that – at least when Bush and his subordinates are involved – a justifiable intent negates any violation of law. In other words, if Bush or his advisers decide that some illegal act is necessary for national security, the act becomes, effectively, legal.
Mukasey is wrapping his extraordinary argument in the context of protecting Bush’s subordinates – at places like the Justice Department’s Office of Legal Counsel – from second-guessing for giving the President advice on what he can do in engaging in acts that would be illegal if done by someone else.
“If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future,” Mukasey told the reporters.
Rep. John Conyers, chairman of the House Judiciary Committee, immediately took issue with the “breadth” of Mukasey’s statement “and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law.”
Conyers reminded Mukasey that reams of evidence – including testimony from career military and law enforcement officials – show that top White House officials may have broken the law by authorizing torture and warrantless domestic surveillance.
“The public record reflects ample warning to administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers … on interrogation issues and the stark warning by then-Deputy Attorney General [James] Comey that the [Justice] Department would be ashamed if the world learned of the legal advice it had given on torture issues,” Conyers said in a letter to Mukasey.
Indeed, Maj. Gen. Antonio Taguba, who led the investigation of abuses at the Abu Ghraib prison in Iraq, said “there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Conyers added, “Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to ‘If the detainee dies you’re doing it wrong' — or the Department lawyer who advised him — justifiably believed that approach comported with the law?”
Conyers was referring to minutes of a discussion on Oct. 2, 2002, when Jonathan Fredman, chief counsel to the CIA’s Counterterrorism Center, told U.S. military officials how interrogators could use the “wet towel” technique, known as waterboarding, to extract information from detainees.
“It can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function,” Fredman said, adding that the “wet towel” technique would only be defined as torture “if the detainee dies.”
“It is basically subject to perception,” Fredman said. “If the detainee dies you’re doing it wrong.”
Fredman’s comments prompted Lt. Col. Diane Beaver, then the chief military lawyer at the U.S. military base at Guantanamo Bay, Cuba, to respond: “We will need documentation to protect us.”
Conyers’s letter signals a strong possibility that his investigation into the Bush administration’s interrogation practices will continue when the 111th Congress convenes in January.
Like Attorney General Gonzales before him, Mukasey has stonewalled congressional inquiries into the Bush administration’s counterterrorism policies by refusing to release top-secret documents about the programs.
Mukasey also rebuffed a request by Conyers in June to appoint a special prosecutor to investigate whether Bush and senior members of his Cabinet committed war crimes by authorizing CIA and military interrogators to use harsh tactics against detainees at Guantanamo Bay and in Iraq.
That request followed an investigation by the International Committee of the Red Cross into interrogation practices at Guantanamo Bay, which “documented several instances of acts of torture against detainees, including soaking a prisoner’s hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball.”
Mukasey’s comments also would seem to undercut work by the Justice Department’s Office of Professional Responsibility, which has spent four years probing the infamous Aug. 1, 2002, “torture memo” addressed to then White House Counsel Alberto Gonzales and written by former Office of Legal Counsel attorney John Yoo and signed by Yoo’s boss Jay Bybee.
That OPR probe is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” according to H. Marshall Jarrett, the head of the watchdog office.