Balkinization  

Thursday, November 01, 2007

Judge Mukasey and the Groucho Marx Principle

JB

This New York Times article suggests that Judge Mukasey cannot announce that waterboarding is illegal at his confirmation hearings for Attorney General because of concern that this would lead to criminal prosecutions and civil suits against CIA operatives who performed interrogations.

Do not believe it.

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law.

To be sure, if Bush Administration officials travel abroad, they may be indicted and tried for war crimes. But if so, that is already true, and Judge Mukasey's statement would not trigger liability: it would merely be additional evidence-- if any were needed-- that waterboarding is a war crime.

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney's terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

Several Republican Senators, who are living in a fool's paradise, have pleaded with Judge Mukasey to declare waterboarding illegal after he becomes Attorney General and has time to study the matter thoroughly. But the Administration would be no happier with such an announcement after confirmation than before. One can be quite certain that enormous pressure will be brought to bear on Mukasey after he enters the Administration never to make that particular pronouncement.

Which places any Attorney General nominee in a difficult bind: The Bush Admininstration will not nominate anyone to be Attorney General who will state publicly that what the Administration did was illegal or dishonorable. That means that the only persons who can be nominated are those who are willing to be complicit in its illegality and dishonor. For if the nominee admitted that the Administration had repeatedly misled the American people about the legality of its actions, he would not be welcome in the Bush Administration.

It is a bit like Groucho Marx's famous line: To be Attorney General in the Bush Administration requires apology for lawbreaking and torture. No Attorney General with any self respect should want to join an Administration like this that would have him as a member.


Comments:

Balkin at his best
 

Where is an Eliot Richardson when needed?
 

Has it occurred to anyone that Judge Mukasey may not believe that water boarding is torture as it is exceedingly vaguely defined in the statute?

Assuming that he is an honorable man, would Judge Mukasy be likely to accept the job of AG if he believed that waterboarding did violate the torture statute and was being told by the Administration that he could not act on that belief?
 

We're well and truly through the rabbit hole when the New York Times seriously expresses "concern" about the fact that the nominee for top law enforcement official in the country might be committed to enforcing the law if he were to admit what is obvious on its face given both fact and precedent, that waterboarding is a paradigm case of torture.

This strikes me as the elephant in the room that everyone, including Balkin in this post, is ignoring. How does one continue to express horror at how degraded our public discussions have become when things like this regularly pass unspoken?
 

Hmm, any country can immunize anything and that historically is what everybody including the most atrocious regimes been doing with rather mixed results generally speaking. That is some escaped the responsibility, some have not.

Remember Nuremberg for example?

The problem is not with what we immunize internally, is with whether we can escape responsibility for such acts internationally. The past experience is rather mixed in this regard but the trend doesn't bode well. See said Nuremberg, Bosnia, Rwanda, etc.

Here is one specific example.

In the early 1970s the British government started to implement the so-called "five techniques" after first fully immunizing its security people in their laws, legal opinions and internal regulations. These were: wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink.

To make the long story short, the European Court of Human Rights ruled 2 years later after the Ireland sued that the techniques although not torture amounted to a practice of inhuman and degrading treatment and thus in breach of the European Convention on Human Rights.

British beat a hasty retreat and promptly made those techniques illegal. (it's rather shameful that that per our own government, Gonzo's DoJ legal opinions, DoD manuals and such,these techniques are still perfectly OK in this country, 30 years after even the British found them unacceptable.)

True no one in the UK was prosecuted for introducing or even using them, but that may be different this time around. It's 30 years later and there are a lot of people/governments out there who would love to stick it to us. Chances are they will.
 

"Assuming that [Mukasey] is an honorable man, ...."

The late Eliot Richardson was an honorable man in accepting his position. He was even more honorable when he resigned rather than fire Cox as directed by Nixon.

Were Rumsfeld, Powell, etc, honorable men when they accepted their positions? Did any of them resign in protest in the manner of the honorable Eliot Richardson? Would Mukasey if he were appointed? Perhaps the assumption of "honorable man" should not apply to the Bush Administration where loyalty trumps duty.
 

Can "an honorable man" believe that waterboarding in not torture? Of course not. Can an honorable lawyer parse the torture statute in such a way that waterboarding can be excluded? Of course. The AG will always be an advocate for Presidential policies, to some extent.
 

Were Rumsfeld, Powell, etc, honorable men when they accepted their positions?

Rumsfeld is an honorable man. So are they all, all honorable men. Rumsfeld says it was not torture, and, sure, he is an honorable man.
 

In answer to Brian DePalma's question as to whether Mukasey honestly believes waterboarding is not torture: Waterboarding was invested by the Spanish Inquisition in the 1500s specifically to extract confessions and/or repentance.
OF COURSE it's torture! Always was, always will be, no need for "context" at all.

Better not to have an AG at all than one who agrees with the Bush Administration. Let's just go without one for the remainder of Bush's term.
 

Excellent post.

I used to think, along with the CW, that it was important to get someone new in the DOJ after Alberto. Now I'm not so sure. Perhaps it's best to avoid putting in a more-articulate enabler for the Bush administration, and just let the office stand vacant as a kind of protest to the Administration.
 

"If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America."

No it wouldn't. Bush would never admit anything. He'd say that Mukasey was mistaken and wishes to spend more time with his family.
 

Arlen Specter said, “The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened.”

Rich said, "This strikes me as the elephant in the room that everyone, including Balkin in this post, is ignoring."

Rich is right.

Here's a little thought experiment: think of the case of Chester Stiles, recently busted for raping a 2 year old and videotaping it. Now imagine, hypothetically, that Stiles was part of a Bush Administration child molestation ring which had conspired to protect themselves from prosecution by getting the OLC to issue an opinion that, under Article II, child molestation laws didn't apply in this case (for some hypothetical reason -- maybe he works for Blackwater or whatever).

What do you think would be the reaction if Mukasey refused to take a position on such a hypothetical case because if he did a lot of child molesters in the Bush Administration would be at risk? And what would be the reaction if an Arlen Specter accepted Mukasey's "logic" about the compelling need to not put the child molesters at risk?

And I stipulate: torture is as bad as, if not worse than, child molestation.

That is one sick GOP elephant in the room. There is only one solution. We have to come out of our national case of psychological denial, admit that the President and the Vice-President are war criminals, and impeach them as a matter of national hygiene.

I'm not a lawyer, so correct me if I'm wrong, but I believe that Congress can impeach regardless of the law or anything the OLC may have said. If that's what we have to do, then that's what we have to do.
 

I believe there's an explanation of the Bush Administration's behavior on this issue that has not received sufficient attention.

The torture apologists (and that should make my point of view clear) like to alternate among variations of three responses to the charge that the U.S. is engaging in torture:

1) we do not torture;
2) whether waterboarding is torture depends on who does it; and
3) we must be able to use "enhanced interrogation" on these people because they have information concerning terrorist plots against us.

The potential inconsistencies between these responses tend to pass unremarked. The most glaring inconsistency is between the purported fanaticism of the detainees and the implicit claim that we are able to obtain information from them with "enhanced interrogation" techniques that fall short of torture. This does not withstand thoughtful scrutiny: are we really supposed to believe that these alleged terrorists, who are prepared to blow themselves to bits in order to further their goals, are going to give up useful information to us -- against their will -- merely because we're a little "rough" with them in our interrogation techniques? That makes no sense. The involuntary production of such information necessarily presupposes that the detainee's will to resist has been overcome by the infliction of some combination of pain and/or psychological terror.

But there is a potential resolution of this seeming inconsistency, and of the varying responses noted above, and it is supported by the fact (as pointed out on this blog) that the memos concluding that such "enhanced interrogation" techniques were not torture focused -- without any statutory basis for doing so -- on the question of duration.

What if what the Administration is doing is using waterboarding of a (supposedly) strictly limited duration, but coupling that limited duration with threats of longer duration? Then the responses start to make some sort of sense: the waterboarding we do is not torture (so they claim), even though waterboarding as done by others has always been recognized as torture. But if we told you what we're doing, then it wouldn't work as well: the detainees would know that the duration of the waterboarding would not, in fact, be pushed beyond the time limits that supposedly distinguish it from "real" torture.

My question for the experts on this blog is whether -- even assuming that such "waterboarding lite" was not, in and of itself, torture -- the implicit or explicit threat of longer duration would also be deemed to be torture under existing statutes and precedents. I would think it would be. It seems indistinguishable from, for example, threatening to subject the detainee to repeated rounds of "Russian roulette," while carefully concealing from him the fact that there were no bullets at all in the gun. Surely this constitutes torture.

Apologies for the length, and thanks for your great work on this issue.
 

what immunity from criminal prosecution? The legislation attempted immunity from civil actions, and even then treaty law has primacy under the rule in Cook v. U.S., etc., as documented in Paust, Beyond the Law.... (Cambridge University Press 2007), available at www.cambridge.org/us
--and good faith? not re: authorizations or orders that called for manifest illegality, as is the case with water-boarding, the cold cell, stripping persons naked and using dogs to terrorize them, etc.--as documented in Beyond the Law.
Jordan Paust
 

No Attorney General with any self respect should want to join an Administration like this that would have him as a member.

C'mon Jack. It's the GOP. Such people are around in spades... *even* on this issue.
 

Has it occurred to anyone that Judge Mukasey may not believe that water boarding is torture as it is exceedingly vaguely defined in the statute?

Has it occurred to Judge Mukasey that, if he doesn't believe waterboarding is torture, he should say so?

Or are we supposed to laud him for holding his tongue in the pursuit of power?

Bart's suggestion that Mukasey is scum is not, I think, a persuasive reason to support him -- at least, to non-scum.
 

Maybe a first hand investigation of waterboarding would be order...if it is not cruel or unusual Judge Mukasey could be waterboarded and then testify on the bases actual information. So, Filibuster the entire congressional session, freeze the pocket book!
 

eben said...

Maybe a first hand investigation of waterboarding would be order...if it is not cruel or unusual Judge Mukasey could be waterboarded and then testify on the bases actual information.

A Fox reporter on Brit Hume's Special Report last night had two former SF solders waterboard him on camera. The reporter broke in less than a minute. The reporter summarized the experience as one of rising involuntary panic. So far, no reports that the reporter is suffering prolonged mental trauma.
 

A Fox reporter on Brit Hume's Special Report last night had two former SF solders waterboard him on camera. The reporter broke in less than a minute. The reporter summarized the experience as one of rising involuntary panic. So far, no reports that the reporter is suffering prolonged mental trauma.
# posted by Bart DePalma : 10:06 PM


Hmmm...let's take the Fox reporter out of the studio with its lights and cameras and put him in a secret prison interrogation cell, with interrogators who are not confederates of his in a demonstration of torture, where they are, rather, hostile, accusatory, implacable enemies of his who mean business and who intend not to stop the waterboarding after a few seconds or so, but who will subject him to it repeatedly, perhaps over a course of days or even longer--how would he know, after all how long he would have to endure this and other maltreatment?

Let's study him after a prolonged such regimen--along with the accompanying isolation, forced imprisonment, forced separation from his home and friends and loved ones, not to mention other abuse to which he might be victim during his imprisonment--and let's see then how well-disposed he is to the torture he was subjected to and to those who tortured him, let's see whether he can be fairly described as traumatized by the experience or not.
 

"Bart" DePalma, the broken record:

Has it occurred to anyone that Judge Mukasey may not believe that water boarding is torture as it is exceedingly vaguely defined in the statute?

Has it occurred to anyone that "Bart" has repeated this trope a thousand times (with only slight exaggeration), and that it's been "asked and answered"? Has it occurred to one person in particular?

Can we dispense with it?

Cheers,
 

The argument that the statute is vague is not quite as dumb as the argument that an act is not torture unless a person who CONSENTS to it suffers the full panoply of ill effects.

The latter argument, in turn, is not quite as dumb as the argument that waterboarding can't be torture because we subject our own CIA trainees to it.

There's really so many dumb arguments here and I don't think we've close to exhausting them all.
 

Waaaaait.....

The argument now is that a reporter suffered the effects of waterboarding for less than a minute and he wasn't scarred for life?

Electrodes to the genitals for less than 60 seconds won't either, dependent on the voltage. Are they in the gray area now?
 

Given that Judge Mukasey most certainly would provide a linear, forthright reply if asked the following question asked of Groucho, one would hope his improvements to Department of Justice would be as mercurially extemporaneous, if somewhat less lascivious, than the witty Julius Henry Marx. When asked where he wanted to repose after mortal death, Groucho said, "[REDACTED]", but it had something to do with a starlet who was new to film in a slapstick detective adventure in which Groucho starred in 1949 entitled Love Happy; the playbill photo is there.
 

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law.

If the Argentine and Chilean experiences are any guide, I wouldn't count on those immunities to hold up for the next 20 years in the face of potentially overwhelming political pressure.

Of course, that would require the American public to come to its senses ...
 

Post a Comment

Home