Who needs Congress and who needs judges when you’ve got Mukasey Posted by Ken Gude

Attorney General Michael Mukasey unleashed a bombshell at today’s hearing of the House Judiciary Committee when he tried to defend his refusal to begin a criminal investigation of the now-confirmed use of waterboarding by the CIA. He told the Committee that the Justice Department won’t pursue a criminal investigation against anyone who “relied, justifiably” on an opinion from the Office of Legal Counsel, even if that opinion was later withdrawn or considered erroneous.

I’m pretty sure that’s not how the law works. Just because your lawyer tells you an action is legal doesn’t give you immunity from prosecution if it turns out to be illegal. An opinion from the Office of Legal Counsel “authorizing” something, doesn’t make it legal. Imagine if that were the case; all that would be required to immunize any Executive Branch official would be a note from the OLC saying it was ok.

And it gets worse. When Judiciary Committee Chairman John Conyers asked to see the OLC opinion that the CIA justifiably relied upon, Mukasey refused and said he couldn’t share it with the Committee because it was classified and discussed a program that was also classified. No matter that the entire Judiciary Committee is cleared to review classified material. They’re just going to have to take the attorney general’s word that the CIA’s reliance on this opinion was in fact justifiable. I’m sure that’s exactly what Hamilton and Madison had in mind. 

Comments

Under this legal precedent, every white collar conviction that resulted from the collapse of the tech and telecom bubbles needs to be overturned if the convict can prove that the company lawyer said it was okay.

By the way, has anyone called Chuck Shumer on this? He supported the Mukasey nomination over the objections of his constituents. Now everything we told him would happen has happened. Could the senator at least apologize?