A torturous defence

From this account of the ongoing discussion of waterboa ... -- um, sorry, torture -- there's the following:

"Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal?" the committee's chairman, Rep. John Conyers, D-Mich., asked [AG Mukasey], calling the technique an odious practice.

"No, I am not," Mukasey answered bluntly. He said the Justice Department could not investigate or prosecute people for actions that it had authorized earlier.

OIC. So the Justice Department authorised the waterboarding. While one might use the Nürnberg Defence of "I was just following orders" for the U.S. agents involved (and watch how well that flies if any of them end up in the Hague), then why not an investigation of the people that authorised this behaviour?!?!? If they authorised illegal behaviour, aren't they complicit? And these legal eagles don't even have the bogus "advice of counsel" defence (see here for more). Let's just follow the "responsibility" for this up the ladder. At some point, someone has to be held accountable.

Mukasey has refused to say publicly whether he considers waterboarding legal. On Thursday, he said it "was found to be permissible under the law as it existed" in the years immediately after 9/11.

Only little problem here is that the OLC doesn't get to "find" whether something is illegal. Such "findings" are a matter for the courts. If it was legal, then the people that authorised it and the people that did it should have no problem defending themselves in a court of law.

Of course, the Rethuglican apologists for the maladministration got in on the act:

The House Judiciary Committee's top Republican, Rep. Lamar Smith of Texas, said he hopes the "administration will not be defensive about using some admittedly harsh but nonlethal interrogation techniques."

"Would you agree with me that 99 percent of the American people would probably endorse such techniques if they would be shown to save thousands of American lives and were conducted only on terrorists?" Smith asked Mukasey.

"I can't sit here and say what I think 99 percent of people would do," Mukasey answered.

"You can't, but I can," Smith said. "I understand that."

Thank goodness we have a Rethuglican with enough honesty and responsibility to tell us what we think (and if we don't, there's always ... 'options' ... to remedy that; see above).

But nothing like asking loaded questions. See here and here for why this is an "academic question" (otherwise, and less kindly, known as a "counterfactual conditional").

And "harsh but nonlethal". Isn't that lowering the bar just a tad (not to mention not quite accurate)?