Sheldon Whitehouse

Right before speaking with the Senate today, Mukasey sent a lawyerly letter to Judiciary Chair Pat Leahy saying essentially, 'You're going to ask me about torture and I'm not going to answer your questions.' ("There are policy initiatives that the department supports that some members of this committee vigorously oppose, and vice versa. There also are situations where the interests of the executive branch and the legislature will be in some tension.")

Which is to say, 'as a member of the executive branch, now, my opinion about laws, as "top law enforcement officer in the land" is not as important as... well, providing cover for the executive branch, which is now my job. btw thanks for that sweet ass confirmation, clowns.'

Leahy reponded, "Attorney General Mukasey knows that this will not end the matter and expects to be asked serious questions at the hearing tomorrow." Oh my stars! Whatsoever shall happen?!

First up, Chuck Schumer who helped Michael Mukasey become Attorney General because Mukasey is from New York, and also because Chuck Schumer is a moron.

Schumer told Mukasey that he is disappointed in him because now that Mukasey is in the Cabinet, he won't stand up to the Bushists when it comes to telling the rest of the Administration that waterboarding is torture and it's "repugnant" and "cruel" (as Mukasey himself called the torture technique in his confirmation hearings where Schumer bounced in his chair and clapped, oh so impressed).

Schumer pouted and said "You have an opportunity here to be something of a leader, and you are going to be asked whether we should pass a law," Schumer begged of Mukasey. In response, Mukasey shrugged and told him that it's not his job as Attorney General to do anything on his own accord.

SCHUMER: I need to tell you how profoundly, in this particular situation, I disagree with you.

MUKASEY: I'm happy to hear that I lived up to expectations. I'm very sorry to hear that I lived down to them.

And with that, Schumer stopped the pursuit. Because Schumer is a moron and a coward. Come on! Asking a former judge to render a legal opinion based on a policy/political preference is a stupid line of questioning.

Waterboarding isn't repugnant, it's torture. A better line of questioning would hew to establishing that illegality. Based not on public policy--the province of the legislative branch, not the enforcement powers of the executive---but on legal precedent.

Biden fucked up in the same way, drilling down into the Nichomachean ethics of torture. Like anybody cares that Biden when to Catholic school and learned latin. To Biden's stupid questions, Mukasey said the DOJ would have to "balance the value of doing something (torture) against the cost of doing it." Cost? "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get."  Information "that couldn't be used to save lives," he explained, would be of less value.

What this reveals is that Bush's DOJ has concluded that waterboarding is necessary and therefore must be not considered torture, so also it must not be termed 'cruel treatment' under the Consitution, Common Article 3... even though Mukasey admitted that it was "cruel" when he asked to be confirmed.

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

Schumer is disappointed. Biden is shocked.  Big surprise, idiots.

Senator Sheldon Whitehouse, who was a United States Attorney, on the other hand understood where all of the previous back and forths failed, he saw the endgame of the argument the Bush Administration was sticking to, and he wouldn't lay off.

WHITEHOUSE: 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...Now the president has said that we will investigate, prosecute all acts of torture and you've just said today, "if someone is guilty of violating the laws of the United States," they get prosecuted...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 an offense under this section is subject to the same penalties other than the penalty of death..." So, we have a statute on point, you are, I believe, the sole prosecuting authority for that statute, correct?

MUKASEY: I am as the top of the Department of Justice, which is the sole prosecuting authority. [...]

When it comes to past conduct, one of the many questions involved in 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 of the person who gave it and maybe not even for that long...

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, we both know. Ummm...

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. If the circumstances under which it was given and what was done have 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 23-40A as the result of...

MUKASEY: I don't, 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 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'd 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 that comes back is, no, there was not a crime and here's why, then we can lay the question to rest. But if you're telling me that this hasn't even been investigated although the destruction of the tapes is being investigated, it strikes me that there is a split standard there and I'm trying to understand why.

War crimes trials, anyone?

The intensely curious, diligent, and intelligent Senator from Rhode Island gave a great speech Friday that should get him the ability to offer subpoenas (link to speech; here's a link to video). I hope it gets him Rockefeller's Chair and I hope it shames DiFi.

Apparently, Whitehouse actually read the Office of Legal Counsel opinions that justified the warrantless wiretap program and continue to justify the Administration's wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here's his description of what he found.

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.
3. The Department of Justice is bound by the President's legal determinations. [my emphasis]

Super smart, Whitehouse next evokes Saint Reagan to argue against Bush:

Let's start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no - zero - statutory protections for Americans traveling abroad from government wiretapping. None if you're a businesswoman traveling on business overseas, none if you're a father taking the kids to the Caribbean, none if you're visiting uncles or aunts in Italy or Ireland, none even if you're a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That's what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." And he doesn't have to change the executive order, or give notice that he's violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration - and this OLC opinion shows why we need to correct it.

Obviously, the implications of this OLC opinion go far beyond the warrantless wiretapping of Americans. The OLC opinion governs all Executive Orders. So in other words, the President can declassify at will and act contrary to a valid executive order.

This is why Whitehouse specifically asked Michael Mukasey about EOs in his confirmation.

WHITEHOUSE: Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

MUKASEY: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

As emptywheel summarized "So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. 'Of course the President can't violate his own EOs! He would need to change them first!'"

Our Attorney General is on record agreeing with Whitehouse that the web Bush weaved when first he practiced to deceive is tangled. And rank.