Wednesday, January 30, 2008

Someone needs to read their job description

Thanks to the spineless and craven Sens. Chuck Schumer and Dianne Feinstein (and a supporting cast of dozens of Dubya-sycophantic Republican foamers), we're treated to this spectacle:
"I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law," [recently confirmed Attorney General] Mukasey wrote to Leahy. "I understand the strong interest in this question, but I do not think it would be responsible for me, as attorney general, to provide an answer."
"... After all, I'm just the preznit's consigliere, not the 'top law enforcement officer of the United States'. What do you want me to do? Say that the preznit's henchmen have been breaking the law or sumptin'?!?!?"

Just in case you're feeling better already because we've allegedly stopped waterboarding, there's also this nugget:
Mukasey said in the letter that waterboarding -- a simulated drowning meant to coerce disclosures by a resisting prisoner -- is not part of a "limited set of methods" being used by CIA interrogators. Mukasey said he has found the current methods, which he did not specify, to be legal.
So Mukasey's not completely unable to make legal determinations, as long as the answer is, "It's OK, just fraternity hazing".

Yes, indeedy, we've found other ways now, of course all perfectly legal, to get the answers we need (and which protected us so well before):

Al-Libi has been identified as the primary source of faulty prewar intelligence regarding chemical weapons training between Iraq and al Qaeda that was used by the Bush Administration to justify the invasion of Iraq. Specifically, he told interrogators that Iraq provided training to al-Qaeda in the area of weapons of mass destruction. In Cincinnati in October 2002, Bush informed the public:
"Iraq has trained Al Qaeda members in bomb making and poisons and gases."
This claim was repeated several times in the run-up to the war, including in Colin Powell's speech to the U.N Security Council on 5 February 2003, which concluded with a long recitation of the information provided by al-Libi. Powell's speech came less than a month after a then-classified CIA report concluding that the information provided by al-Libi was unreliable and about a year after a Defense Intelligence Agency report concluded the same thing.

Al-Libi recanted these claims in January 2004 after U.S. interrogators presented to him "new evidence from other detainees that cast doubt on his claims", according to Newsweek. The DIA concluded in February 2002 that Libi deliberately misled interrogators. Some speculate that his reason for giving disinformation was in order to draw the U.S. into an attack on Iraq, which al Qaeda believes will lead to a global jihad. Others suggest that al-Libi gave false information because of the use of excessively harsh interrogation methods. Al-Libi is believed to have been one of the high value detainees who prompted the Bush administration to initiate interrogation methods of questionable morality and legality. These critics suggest it wasn't hard for al-Libi to figure out what his interrogators were sure he knew, and that they wouldn't stop, until he told them what they wanted to hear.
But you can bet your boots that Mukasey won't tell you what these new "methods" are. That would reveal secrets, damage nash'nul securitah and be ... "irresponsible". Do you want the Terra-ists to win?

(h/t to Think Progress)


Update:


Now we're getting somewhere. The Muck is reporting that Biden's method of questioning is producing results:
Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."

So we've got our "TTB" scenario again.... What "shocks the conscience" for Mukasey is not getting a good deal for your torture.

(h/t to TPM Muckracker)


Update 2:


Prof. Marty Lederman has posts up on this subject as well at Balkinization, here, here and here.

From the "Do you want the Terra-ists to win" bin, Prof. Lederman puts forth this 'logic':
It would, Mukasey insists, "tip off adversaries" to define "the limits and contours of generally worded laws" that circumscribe U.S. interrogation policies.
Of course, "the limits and contours" of our laws need to secret, or the Terra-ists will have won. If there's not room for some slop when needed, why, we might even have to break the law on occasion, as the occasion may require. See my "TTB" link above for more on that.

But just to clarify things a bit, I'd note that "our laws" apply to everyone, not just those people whose missions and jobs are Tippy-Top, Sooper-Dooper, Hush-hush, Secret, such as soldiers, police, etc. I guess that such people will just have to guess as to the "contours", and do the best they can. There's always a preznitential pardon from Dubya for the luckless left in the dark....


Update 3:


Looks like someone else agrees with my title for this post:

Sen. Sheldon Whitehouse, D-R.I., accused Mukasey of taking an overly narrow view of his responsibilities as attorney general and said he appeared to be acting as a corporate lawyer "unwilling to look back and dredge up past unpleasantness and risk potentially creating liability for the corporation."

"You are the top law-enforcement officer of the United States," Whitehouse said. "And prosecutors do look back. They do dredge up the past in order to do justice."
Mukasey was not chastened, though:
Said Mukasey: "I wear one hat. It says attorney general of the United States. There are a number of duties under that, but as far as I'm concerned, there is no divided responsibility or divided loyalty. There is one responsibility."
"... and that responsibility is to be "loyal", to do the preznit's bidding, and to cover the preznit's a$$."

Well, at least we've got that clear. Thank you, Chuck and Dianne.

9 Comments:

At 10:28 AM, Blogger Arne Langsetmo said...

"Bart" (from here):

The President and Congress long ago agreed that the Intelligence Committees had sole oversight over classified intelligence gathering. The judiciary committee has no business here.

Congress has hardly been told to take a hike. The intelligence committees have been briefed on the CIA interrogation program from the beginning.

This hearing is simply grandstanding. If judiciary committee members want to be read into classified intelligence gathering, they need to get an assignment on the intelligence committee.


"The President and Congress long ago agreed..."

WTF cares -- assuming arguendo there was some such "agreement" -- what they "agreed"? Any such agreement has no legal significance, and Congress (or some subset thereof) can not limit their powers in such a manner, much less can the preznit do so.

They're discussing laws that are voted one and passed by the entire Senate. Why "Bart" thinks it not only apprpriate but necessary for the full Senate to buy a 'pig in a poke' is beyond me.

Cheers,

 
At 11:08 AM, Blogger Arne Langsetmo said...

From the first of Prof. Lederman's posts:

[-wg-]: Crude jokes aside, why not having "enhanced techniques" available in domestic law enforcement too?

["Bart"]: Coerced testimony violates the 5th Amendment and cannot and should not be admitted as evidence of a confession in a criminal trial.


Coerced "testimony" (and I use the word loosely) -- a/k/a "torture" -- is banned by the Geneva Conventions [see Article 17] and all norms of civilised behaviour.

["Bart"]: Foreign enemy combatants have no 5th Amendment right to silence while being interrogated for intelligence. Intelligence gathering is not about obtaining confessions. Rather, it is about locating and identifying other enemy combatants so they can be killed or captured.

SFW? The "ends" are more 'noble'?!?!? Covered here. The Fifth Amendment doesn't have a loophole for benevolent 'torture' either, even though such might seem to be warranted by the 'exigencies' of certain situations....

Cheers,

 
At 12:24 PM, Blogger Arne Langsetmo said...

"Bart" finally answers the "Ticking Time Bomb" question:

If you have a true ticking bomb situation where you have solid evidence that the bomb exists and the identity of the bomber and there is no information where the bomb is so you can evacuate the targeted buildings, then you are left with a true "Dirty Harry" conundrum about whether to use force on the suspect to save lives at the risk of losing the case and being tried for assault and the like.

In that situation, I would put myself in legal jeopardy to save lives. Would you?


So then there's no need to make such conduct legal in such circumstances,, much less in all circumstances, is there? Yet "Bart" has been a big proponent of the "TTB" argument for justifying torture for quite some time.....

Cheers,

 
At 5:39 PM, Blogger Bart DePalma said...

arne:

In that situation, I would put myself in legal jeopardy to save lives. Would you?

So then there's no need to make such conduct legal in such circumstances,, much less in all circumstances, is there?


No there is not. The ticking time bomb scenario almost never occurs. I addressed the question for fun because folks who ask it put themselves in the position of defending mass murder to protect the civil rights of a terrorist, which is simply a morally indefensible position.

The real life scenario is one where the US has captured a high value target with actionable intelligence on the identity and locations of large numbers of enemy, who will redeploy and hide when they discover the HVT has been captured.

The question raised by that situation is whether the US should use coercive interrogation on the HVT when standard interrogation methods fail to produce the intelligence and the window to gain the intelligence before the enemy disperses is closing.

Like the ticking time bomb scenario, what is at stake is still the prevention of mass murder. However, the mass murder is not necessarily imminent. Rather, what is imminent is the ability to identify, locate, kill or capture the terrorist cells which will perpetrate future mass murder.\

 
At 5:45 PM, Blogger Arne Langsetmo said...

The erstwhile lawyer "Bart" takes on my (and other's) objections concerning "secret" laws:

[-wg-]: This is as Kafkian and bizarre as they come - legal memos interpreting federal law secret? Total nonsense, how on Earth law abiding people are supposed to abide if practical interpretations of federal statues are kept secret from them?

["Bart"]: The persons subject to the guidance of these memos are intelligence professionals who are read in on them.


And this changes the scope of the law exactly how? Is it then different in applicability to those that have been 'privileged' enough to have been "read in", and a different law for those not so lucky?

Does the imprimatur of an OLC memo known only to a select few have any actual legal weight? Does a law mean different things depending on how much you -- the person charged with obeying (or breaking) the law -- know?

Cheers,

 
At 6:16 PM, Blogger Arne Langsetmo said...

"Bart":

The ticking time bomb scenario almost never occurs. I addressed the question for fun because folks who ask it put themselves in the position of defending mass murder to protect the civil rights of a terrorist, which is simply a morally indefensible position.

May I ask that you restrict your 'counter-arguments' to arguments that people have actually made? I haven't seen anyone making such an argument as you suggest they made either here or at Balkinization. It would behoove you to wait your turn with your "killer" argument until such time as they do.

The real life scenario is one where the US has captured a high value target with actionable intelligence on the identity and locations of large numbers of enemy, who will redeploy and hide when they discover the HVT has been captured.

The question raised by that situation is whether the US should use coercive interrogation on the HVT when standard interrogation methods fail to produce the intelligence and the window to gain the intelligence before the enemy disperses is closing.

Like the ticking time bomb scenario, what is at stake is still the prevention of mass murder. However, the mass murder is not necessarily imminent. Rather, what is imminent is the ability to identify, locate, kill or capture the terrorist cells which will perpetrate future mass murder.


If the "TTB" is insufficienct reason to legalise torture, as you seem to admit:

[Arne]: "So then there's no need to make such conduct legal in such circumstances,, much less in all circumstances, is there?"

["Bart"]: No there is not.


... then these situations of less "exigency" can hardly be such.

Thanks for playing.

Cheers,

 
At 5:40 PM, Blogger Arne Langsetmo said...

In a new Balkinization post, we have this:

["Bart"]: The AG serves at the pleasure of the President to execute the policy goals of the President.

Some might think that the job of any executive officer is to do whatever the preznit tells him to do, but in fact, for most people, the standard definition of the job of the AG is as the "top law enforcement official of the Unites States". If all the inferior executive officers were just supposed to be Dubya's "yes-men" and "fixers", there wouldn't need to be such a plethora of them. But, as pointed out above, it is the job of a law enforcement officer (and the DoJ and their U.S. attorneys) to find out if there's been a crime committed, and to prosecute it if so. Mukasey's saying basically, "Hey, no problem, they stopped, isn't it moot?"

Cheers,

 
At 8:14 PM, Blogger Bart DePalma said...

arne:

["Bart"]: The AG serves at the pleasure of the President to execute the policy goals of the President.

Some might think that the job of any executive officer is to do whatever the preznit tells him to do, but in fact, for most people, the standard definition of the job of the AG is as the "top law enforcement official of the Unites States".


The "top law enforcement official of the United States" would be the President, not the AG. Try reading Article II again. The President is vested with all executive power. Law enforcement is a basic executive power. The AG is merely the subordinate of the President delegated the task of law enforcement.

 
At 9:32 AM, Blogger Arne Langsetmo said...

"Bart" DePalma:

The "top law enforcement official of the United States" would be the President, not the AG.

No. The preznit is the chief executive. The top law enforcement official is the AG, the head of the Department of Justice, specifically tasked to see that the laws are carried out and to oversee investigation and prosecution of crimes and other violations of the law. Really. It's in the job description, and it's in the mandate for the Department of Justice. The preznit is the AG's boss, but the preznit has many duties and is not adequately described as the "law enforcement official".

The AG is merely the subordinate of the President delegated the task of law enforcement.

Do you seriously contend that the preznit could delegate the running of the Department of Health and Social Services to the AG next week?!?!? This is beyond silly, "Bart": The very existence -- and the job responsibilities -- of the Cabinet, as well as the authorisation for the Department of Justice, are due to Congressional action, not the "Divine Right of Kings".

Here's the relevant language:

U.S. Constitution, Article II, Section 2:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.


Nowhere there does it say the AG is the preznit's consigliere.

Cheers,

 

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