Mukasey Defends Bush's "Hypothetical" Torture
By Jon Perr Friday Apr 17, 2009 3:00pm
As the latest from the Wall Street Journal and Politico reveal, the apologists for George W. Bush's regime of detainee torture are circling the wagons. While one anonymous Bush official claimed the Obama's release of the torture memos "laid it all out for our enemies," former Attorney General Michael Mukasey in an op-ed written with his CIA counterpart Michael Hayden proclaimed, "The President has tied his own hand on terror." Of course, in his 1700 word screed, Mukasey never acknowledges the possibility that the brutal tactics he defends might be illegal and require prosecution. And that comes as no surprise; back in 2007, Michael Mukasey derided such questions as "hypothetical."
To be sure, Hayden and Mukasey trot out all of the usual Republican talking points. Obama, they charged, not only disclosed "successful" CIA interrogators' "secret sauce" to terrorists, but ensured the agency would return to its timid ways:
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
Despite revelations as recently as three weeks ago that "not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions," Mukasey continued to insist that Abu Zubaida was "coerced into disclosing information that led to the capture of Ramzi bin al Shibh" and by extension, 9/11 mastermind, Khalid Sheikh Mohammed.
But while Mukasey today brushed off any notion that the Bush administration's so-called enhanced interrogation techniques "disgraced us before the world," during his confirmation hearings he hedged his bets.
Following in the footsteps of Alberto Gonzales, who during his own February 2005 confirmation hearings deemed Senators' questions on presidential authorization for torture as a "hypothetical situation," Mukasey tried to skirt the issue of the legality of the practices in question. As ThinkProgress recounted, Judge Mukasey in a written response to Democratic Senators in October 2007 took the same line as his predecessor:
In the four-page letter, Mukasey called the interrogation technique "over the line" and "repugnant" on "a personal basis," but added that he would need the "actual facts and circumstances"" to strike a "legal opinion":
"Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."
But during the hearings themselves, Mukasey made clear he was already familiar with at last some of the facts, including at least one of the memos released yesterday:
"The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary."
And like Gonzales, Mukasey refused to disavow specific "enhanced interrogation techniques" such as waterboarding.
Entering the realm of semantics and circular logic, Mukasey followed Gonzales' 2005 approach in characterizing discussions of presidential power to authorize given interrogation procedures as hypothetical. As the Washington Post detailed, Mukasey in essence claimed the legality of "torture" all depends what the meaning of "torture" is:
"I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said Sen. Dick Durbin, D-Ill.
"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey answered.
During terse questioning by Sen. Sheldon Whitehouse, D-R.I., Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.
"If it's torture?" Whitehouse responded incredulously. "That's a massive hedge. I mean, it either is or it isn't."
"If it amounts to torture, it is not constitutional," Mukasey answered.
"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."
As Republican Senator Lindsey Graham (R-SC), himself a judge advocate general (JAG) in the military, noted at the time, there was no ambiguity about the legality of the techniques in question.
"If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don't think you have to have a lot of knowledge about the law to understand this technique violates the Geneva Convention and other statutes."
As we fast forward to the imbroglio over the torture memos' release, Salon's Glenn Greenwald made an additional point about the laws and treaty obligations of the United States. The Geneva Convention and the Convention Against Torture signed by Ronald Reagan not only require that the U.S. prosecute those who perpetrated acts of torture, but clearly state that "an order from a superior officer or a public authority may not be invoked as a justification of torture."
Alas, for Michael Mukasey, that's just another pesky hypothetical.
(This piece also appears at Perrspectives.)
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Looks like Mukasey is following Obama's lead. Both want to overlook massive crimes of the executive branch and continue along as if nothing has happened. Meanwhile, state secrets, illegal detention, and possibly more incidents of torture and abuse continue in America's prison camps.
to go after Gonzalez, Addington, Woo, etc. The rest of the world will demand something is done.
Those Bush apologist who try to paint Obama as the same are just sour grapes for their own wretched outlooks in life. You almost have to feel sorry for them. Almost, but naw!
to one and/or all of them.
Arrest them now. Somebody. Please.
calgary if someone is arrested it wont be by the obama admistration, as obama allready said he sees no criminal acts that the bush admistration has done! even though its common knowlege they did extencive torturing , sad isnt it seems the political goons can do no wrong !
Kinda like they got KKKarl Rove???? Or released the e-mails?
dont worry the rest of the world will do the job obamas not about to do i have it on good authority by a close and personal friend ,
"The rest of the world will demand something is done."
Yeah, right. That's a good one. Like America ever listens, or even cares?
You don't need to be a "Bush apologist" to see Obama is simply wrong on this.
Now, you might argue, he is being terribly clever and is waiting for the grassroots hue and cry to rise up to defeaning levels, but observing America these days, that might seem a bit weak.
It might be difficult for you to do, as anti-Obama as you are. And whether or not Obama is "simply wrong" on this, that is of course your opinion, and you do know what they say about opionions don't you?
From the BBC:
Spain rejects US 'torture' probe
Guess this line of reasoning counts out about 99.999999% of the world's population, as we were not present. Maybe Laos will be the next country to try? You'll listen to them, right?
what does that make you?
Mr. 2nd?
giving us comic relief.
And, of course, Ms Feinstein!
Only traitors torture.
I want nothing less than treason trials for Bush and Cheney. If they did nothing wrong they will be hailed as heros after they are vindicated.
If they didn't direct the actual action from the White House, they have nothing to fear. Right now we have some questions.
"that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001."
I guess he means Rice's and Bush's the failure the absorb the words ""Bin Laden Determined To Attack"
Based on what former Bush WH high officials and what the Obama WH now is also projecting and in essence condoning Bush WH conduct Americans should not then have any problems when Americans are either captured or arrested and then tortured.
Americans such as Mukasey,Hayden,Gonzales,Cheney or now Holder and indeed Obama are opening this door for any and all Americans either in American armed forces,intel services or American business positions to being exposed and subjected to torture regimes.
WashingtonDC says torture is OK. Fine. Then expect others to employ the same set of reasoning and practices. Americans do it. Did it. They cannot
then turn around and claim others cannot. The BS factor just got a lot deeper here.
In the final evaluation the Obama WH is not enforcing the law. This is a attack on the rule of law by the Obama WH. There is no fall back position in these matters. You enforce the law. You do not. This is so simple and for the Obama WH to muddy up the reasoning lines so needlessly is cowardly and fully worthy of being despised.
There is no shame here. And that is worthy of full contempt.
thats the title of David Rifkins discussion in todays NYtimes.
"The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.
However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.
This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor."
David Rifkin, you are a miserable excuse for a human being.
And that goes for the commenters at that discussion who scoff that its torture and condone it.
Sick people.
Crooks and Liars seems devoted to defending Obama and the Democrats no matter what, all the time. You promote a false dichotomy between the Republicans (bad) and the Democrats (good). In reality, they are both corrupt parties, neither of which represent or uphold the will of the American people, and this includes Mr. Obama. Watch The Obama Deception on Google video and weep. We're being lied to at every turn of the screw. Watch Naomi Wolf's movie The End of America on Google video and weep. Then get busy taking action to create a peaceful revolution of the people. We are the ones we're waiting for. Don't wait!
America used to stand for something... other than profits. Remember? So few do, it seems.
It was your laws that made you great. It was your laws that kept you safe. It was your laws that protected the average schmuck from tyranny, and those that would do you harm. It was your adherence to the laws that set you apart from other nations. It was your laws that gave you freedom.
Now people seem quick to allow them to be tossed aside and put their faith in the powers that be. Big Big mistake.
But no one on the "left" is much interested in revolution - peaceful or otherwise.
War in Iraq until 2011 and counting? Sure.
Let torturers and criminals go? Sure.
It produces bad results that waste our resources chasing down bad information and that's just aside from the fact that it's immoral. There's a good reason torture is banned and it's because it does not produce results which makes it a function of inflicting pain for sadistic reasons alone. I grew up thinking that America was better than that....silly me. History won't forget the ignorance of supporters of the Bush torture policies.
so big ah deal obama condones it samee sameo!
Schumer practically had an orgasm over the prospect of Mukasey as Attorney General.
The dems were so so eager to kiss the posterior of Mr. Bush - to show how bipartisan they were.
So we were stuck with this moron.
The dems were enablers. Without their stupid, unquestioning acquiescence, there were have been no war in Iraq - no Mukasey.
Mukasey now has added to his Legacy he approves torturing woman and children. Gone are human rights as the Bush memos showed the horror done to children. What kind of person tortures kids?
Hatred clouds judgment.
I hate these people.
Please, please, PLEASE don't show a photo of these two jackasses together. Ever. Again.
and he always said he didn't know enough about it to form an opinion, but...waterboarding...torture...blah blah. He got himself into the job and Dems. like Shumer off the hook. Phooey.
Mukasey belongs in only one place, sitting at the Defendant's table, and not as a lawyer.
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