The Nature of the Job

As you'll recall, back when Michael Mukasey was nominated to be Attorney-General, some Democrats wanted him to acknowledge first that waterboarding is torture. He took the somewhat preposterous line that he couldn't answer the question until he'd been confirmed. Convenient! Well, now it seems Russ Feingold hasn't forgotten and is formally requesting a legal opinion from Mukasey.

If he finds the techniques used by the CIA to have been torture, which he said is illegal, then he will come under tremendous pressure to prosecute the interrogators and possibly even the administration officials who approved the illegal behavior. If he doesn't conclude that they're torture, he'll be embracing a politically convenient and euphemistic definition of the law.

When you think about it, though, this isn't a very hard choice to make. He's going to embrace the politically convenient, euphemistic definition of the law. When Mukasey was up for the job, there was some sentiment that he should be confirmed because he's a basically honest, ethical, competent guy. Realistically, though, there's just no way a person in Mukasey's position could do his job in an honest, ethical, and competent fashion. He's not going to prosecute people for performing interrogation techniques the president authorized. And yet, those techniques are illegal. You need to either prosecute the interrogators or else (much better) immunize them for the purposes of prosecuting their superiors. But it's not going to happen.

The nature of the job, now as well as at the time it was offered to Mukasey, is that carrying water for the criminal acts of current and former senior officials is a core responsibility. There isn't -- and wasn't -- any sense looking for an honest and ethical nominee because no honest and ethical person could possibly do the job. Mukasey may well have been a saint the day before he accepted the offer, but putting yourself in a senior position in the Justice Department these days is inherently a bargain with the devil.

Comments

Probably right, but this guy Mukasey could possibly give us a pleasant surprise. He's no Fredo. He's had a distinguished career marked by independence and didn't rise by being someone's lackey. You can never be completely sure what you'll get from a guy like that. I suspect the Bushies are nervous about that.

Posted by jbd | December 10, 2007 2:55 PM

Was he ever subjected to torture so he could figure out? We don't need legal opinions for this one, trust me.

Posted by Billare | December 10, 2007 2:58 PM

Was he ever subjected to torture so he could figure this one out? We don't need legal opinions for this one, trust me.

Posted by Billare | December 10, 2007 3:00 PM

Mukasey may well have been a saint the day before he accepted the offer, but putting yourself in a senior position in the Justice Department these days is inherently a bargain with the devil.

In what sense? Is MY saying that once he joined Justice under Bush Mukasey went through a brainwashing ceremony of some sort? Or that the government apparatus immediately when to work to find dirt on the guy so they could control him? How does entering the Justice Dept. change the man in any way?

Either he was in the bag for Bush from the beginning (agreeing in advance not to prosecute him or any of his lackeys) or he's independent. And I don't seen Mukasey having much in the way of future ambitions. I suppose he could dream of being kept on in a Gulianni administration if he plays ball, but that's a stretch.

I don't think the guy's going to make a good ruling on torture, however. But the reason is that he's been a partisan player from the beginning.

Posted by Rob Mac | December 10, 2007 3:06 PM

Well, he could do his job in a semi-honest, semi-ethical fashion, if he believes he's more or less unfireable, in much the same way that Gates has lots of latitude to do things that his predecessors did not.

Posted by Nicholas Beaudrot | December 10, 2007 3:07 PM

Agreed that Mukasey will not prosecute. But he's out in 13 months. I would still like to know whether the Democratic candidates will pledge to prosecute the CIA personnel who committed (and the personnel who approved) waterboarding. Or do the Democratic candidates, like Mukasey, need to get into office before determining if waterboarding is torture and if torture is a crime that ought to be prosecuted?

But, needless to say, no left-winger will ever ask the Democratic candidates such a question, since it might put the condidates in a difficult spot. Which we can't have.

Posted by Al | December 10, 2007 3:10 PM

It is not necessary......... to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have "leave to live by no man's leave, underneath the law."

Justice Robert H. Jackson, excerpted from his opening statement, Nuremburg Trials.
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Justice dictates that Bush hangs.

Posted by steve duncan | December 10, 2007 3:13 PM

Steve Duncan,

Much agreed.

Posted by Billare | December 10, 2007 3:14 PM

Well, one previous Attorney General -- Eliot Richardson -- threw an inkpot at the Devil. I suppose we might luck out and find that Mukasey is the second one, but I'm definitely not counting on it.

Posted by Bruce Moomaw | December 10, 2007 3:27 PM

It is not necessary......... to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have "leave to live by no man's leave, underneath the law."

Justice Robert H. Jackson, excerpted from his opening statement, Nuremburg Trials.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Justice dictates that Bush hangs.
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By that standard Madison hangs for the War of 1812, Polk hangs for the Mexican War, Lincoln hangs for the Civil War and McKinley hangs for the Spanish-American War. Just sayin

Posted by Campesino | December 10, 2007 3:36 PM

By that standard Madison hangs for the War of 1812, Polk hangs for the Mexican War, Lincoln hangs for the Civil War and McKinley hangs for the Spanish-American War. Just sayin

Posted by Campesino
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Hmmm, seeing as they're all dead that would be a neat trick. I can see someone wanting to excuse Bush for his atrocities and crimes based on previous criminals going unpunished for theirs. Most people get past such shenanigans once they've quit pointing fingers at their siblings in a frantic attempt to avert blame for breaking a window.

Posted by steve duncan | December 10, 2007 4:01 PM

Hmmm, seeing as they're all dead that would be a neat trick. I can see someone wanting to excuse Bush for his atrocities and crimes based on previous criminals going unpunished for theirs. Most people get past such shenanigans once they've quit pointing fingers at their siblings in a frantic attempt to avert blame for breaking a window.

Posted by steve duncan | December 10, 2007 4:01 PM

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Just trying to provide a little historical perspective on Jackson's standard.

I wonder - do you think Lincoln was a criminal who went unpunished for his atrocities and crimes? How about Madison?

Posted by Campesino | December 10, 2007 4:19 PM

Matt, did you get Schumer's mass email to everyone who had contacted him about not voting for Muskasey either last week or at the end of the previous week defending his vote? Nothing particularly new, but kind of interesting.

Posted by washerdreyer | December 10, 2007 5:16 PM

"By that standard Madison hangs for the War of 1812, Polk hangs for the Mexican War, Lincoln hangs for the Civil War and McKinley hangs for the Spanish-American War. Just sayin"

_Aggressive War_
The War of 1812 was a clusterfxck, I don't think Madison is guilty of waging aggressive war by the Nuremberg Standard. The South struck first in the Civil War, so if anyone should be hanging over that it would be Jeff Davis, which I'm not too bothered by. The Mexican-American and Spanish-American Wars were both unprovoked wars of aggression, so yeah, McKinley and Polk probably should have hung as war criminals, if anyone should. Of course, all of these wars, with the partial exception of the Spanish-American War, came before the modern era of international laws of war. Nice try though.

Posted by rbl | December 10, 2007 5:51 PM

Campesino's basic attitude toward the law - echoing the Bush Administration principle - is: if you like the guy or the results of what he's doing, ignore that he's a war criminal.

Actually, I suspect MOST of the Presidents of this country probably could be legitimately hung as war criminals - along with most of the people who served in their cabinets, the DoD, and others.

If you give the order to bomb a civilian city and cause civilian casualties, you're a war criminal. It's that simple. By that measure, both Bush Presidencies, and the Clinton and Reagan Presidencies qualify. Can't remember if Ford bombed anybody, but he let Suharto invade East Timor, so he probably qualifies as well. Carter, of course, started the Afghanistan mujihideen support program, so he probably qualifies given the blow back. Nixon and Kennedy were in Vietnam, so they qualify. Eisenhower wanted to overthrow Syria, so he qualifies.

I'll leave it there, since pretty much everybody else was bombing civilians back through WWI. I presume we could get quite a few more Presidents back into the 18th Century - including Lincoln.

Posted by Richard Steven Hack | December 10, 2007 6:24 PM

Actually, I suspect MOST of the Presidents of this country probably could be legitimately hung as war criminals - along with most of the people who served in their cabinets, the DoD, and others.

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My point exactly. The sad story = winners write the rules and are heroes - losers are war criminals

Posted by Campesino | December 10, 2007 7:38 PM

The War of 1812 was a clusterfxck, I don't think Madison is guilty of waging aggressive war by the Nuremberg Standard. The South struck first in the Civil War, so if anyone should be hanging over that it would be Jeff Davis, which I'm not too bothered by.
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The US declared war in 1812 due to British interference in foreign trade (blockade of France) and impressment of US citizens as sailors. The British were really no military threat to the US - they had their hands full with Napoleon. One of our earliest acts in the war was to invade Canada with the intention to annex it.

The South had not intention of invading the North at all. Actually they asked politely for the evacuation of Ft. Sumter - they would have preferred not to shoot at it but it was blocking a major harbor.

Posted by Campesino | December 10, 2007 7:44 PM

The Confederate annexed the whole Southern part of the United States. That's as aggressive as you can get.

Posted by mq | December 10, 2007 7:56 PM

The US declared war in 1812 due to British...impressment of US citizens as sailors. The British were really no military threat to the US

Also, this statement is self-contradictory.

Posted by mq | December 10, 2007 7:58 PM

"The US declared war in 1812 due to British interference in foreign trade (blockade of France) and impressment of US citizens as sailors."

Systematically kidnapping and effectively enslaving US citizens probably counts as an act of war against the US. Furthermore, if the British were no real threat, then how did the White House get toasted? I'm not saying that the US acted purely in the War of 1812, but it wasn't on the level of crimes against the peace.

"The South had not intention of invading the North at all. Actually they asked politely for the evacuation of Ft. Sumter - they would have preferred not to shoot at it but it was blocking a major harbor."

First of all, the South had no "right" to Fort Sumter. If Cuba politely asked for Guantanamo back, and we refused, then they attacked, they would be the aggressors, and the Cubans have way more claim to Gitmo than the Confederacy did to Ft. Sumter. The South attacked first, and invaded PA not too long after, IIRC. The Confederacy were outlaws and aggressors, and even if you accept the CSA as the legitimate government over the south, they _still_ were the aggressors.

Posted by rbl | December 10, 2007 8:03 PM

No, Campesino, that wasn't your point. Your point was that US war criminals are "heroes."

And it wasn't my point, either. My point was that US war criminals are war criminals.

Posted by Richard Steven Hack | December 11, 2007 2:57 AM

Mukasey's not going to prosecute, and what would be the point if he did? The defendants would trot out the "Unitary Executive" nonsense, and Thomas, Scalia, Alito, Roberts and one of the remaining justices will agree w/ the UE logic. Actually, I'd really like to see that none the less. Even if they end up confirming the UE logic, there's bound to be some interesting Q&A.

Posted by Kurzleg | December 11, 2007 11:18 AM

No, Campesino, that wasn't your point. Your point was that US war criminals are "heroes."

And it wasn't my point, either. My point was that US war criminals are war criminals.

Posted by Richard Steven Hack | December 11, 2007 2:57 AM
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You obviously have no clue what my point was.

Your point was the only one you ever have which is that everyone is a war criminal. Usually it's Bush but in your earlier comment you added all other US Presidents to the list

Posted by Campesino | December 11, 2007 3:04 PM