an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
You're crazy if you think I'm going to admit that any of the interrogation practices previously performed by the Administration that just hired me are illegal. Saying that would suggest that people in the Administration violated the law and are subject to criminal prosecution, and that previous OLC opinions have condoned war crimes. The only thing I will tell you is that I sure hope we don't continue one of these practices in the future (lucky for me you haven't pressed me about the others!). But don't ask me to say that the President can't do any of them later on if he wants to. I mean, come on, guys, I just got here, you know? I just put new drapes in my office. I really don't want to have to get fired only three months after I started.
Oh, and by the way, the President, my boss, never violates the law. Got that?
Do you really believe that Mukasey’s positions are based on his desire to keep his job? After all, he just left a life-tenured judgeship for a very temporary term in a job that few other people want. I seriously doubt he has any concerns about being fired.
It may be comforting to proceed on the assumption that Mukasey is taking intellectually dishonest positions just to please his boss. It seems to me more reasonable, not to mention more generous, to assume (absent proof to the contrary) that he is taking positions that he believes to be consistent with the long-term institutional interests of the executive branch and the Justice Department. The fact that Congress views these positions to be maddening and circular is not to the contrary since (a) Congress always views DOJ’s positions on these matters to be maddening and circular (pick up any CRS memo on the history of congressional disputes with DOJ over information about “open” cases, deliberative process and attorney-client privileges, “secret law,” refusals to defend statutes, etc) and (b) they often are maddening and circular.
His exchange with Whitehouse was particularly troubling, for to claim that no grounds exist to initiate even a preliminary inquiry into allegations of torture is so patently false that his credibility as a prosecutor is basically nonexistent now.
The torture community got everything they wanted from him, immunity from prosecution for their past deeds and a carte blanche for future torturing. Forget the image problem, little can be done here as long as he and his principals stay in office, but if this is allowed to stand waterboarding will become widespread, everybody, freshly minted allies of ours in Eastern Europe, Uzbeks in Asia, Chinese in China, Sarkozy in France, South Americans in South America, etc will feel free to waterboard, to torture, you know if Americans can do it why can't we?
Expect an epidemic of waterboarding and torture in secret prisons all over the world thanks to Mukasey and his principals.
(hopefully I'm not abusing hospitality of this site too much)
Here is YouTube of Whitehouse-Mukasey exchange, second round. Worth seeing for its intensity and Whitehouse's not so subtle hint that Mukasey by dint of his access to clasiffied information has more than enough to start an initial inquiry into allegations of torture. 2340a refers to prohibition on torture in US code.
TPM has more analysis and the full transcript here.