More on Mukasey

From Crooks and Liars, some comments on the new AG's testimony before Congress:

Committee Chairman John Conyers (D-Mich.) asked if Mukasey was prepared to prosecute admitted instances of administration-ordered torture. No, the AG said, because the Justice Department decided it was legal.

In the same hearing, Rep. Jerrold Nadler (D-N.Y.) pointed out that the president had authorized an unlawful warrantless wiretapping program, and inquired as to whether this was an example of the president breaking the law. Mukasey said it couldn’t be against the law, because the Justice Department decided otherwise.

David Kurtz at TPM had this to say:

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

Kurtz misses a point here: Bush has already dismissed Congress, through his signing statements. What Mukasey is saying is that the courts are irrelevant -- the DoJ will now interpret the law and, based on its own interpretation, will decide whether to prosecute violations.

One of Kurtz' readers hit the same point:

David Kurtz's "Mark This Day" blurb misses the most important point -- it's not just that the Attorney General's position is that a DOJ Order makes the subject activity legal but that, as Nadler brought out, there is now no recourse to a judicial test, either criminal (through refusal to prosecute) or civil (through the state secrets privilege based solely on a DOJ affidavit). The DOJ is entitled to take whatever position it wants, however self-serving and unitary, but now there is no avenue for judicial review and so that is the end of the story. That is the important point here.

I start to wonder, quit seriously, if we are going to be able to get this asshole out of the White House. Any bets on whether Mukasey decides the November election is invalid?

Update:

Here's a weird post from Marty Lederman on this. Afraid it just makes no sense to me (granted, I'm not a lawyer, but I'm what you could call an "educated layman."):

Well, for one thing, it remains DOJ's view that the waterboarding was lawful at the time it used. (Hayden also testified today that its current legality would be a harder question, because of the intervening enactment of the DTA and MCA, and the Hamdan decision. This confirms my earlier surmise that in the Administration's view, waterboarding is not torture under the torture act (a statute that was in place in 2003), and that its legality today thus depends only on whether it is "cruel treatment" under Common Article 3 and on whether it shocks the conscience under the McCain Amendment.)

This view might be wrong on the merits -- I certainly think it is -- but nevertheless it remains the view of the prosecuting entity, the Department of Justice, and, more importantly, it is the view of the President. Given that that is the case, it would simply be nonsensical -- indeed, unconstitutional -- for the Department to prosecute persons for conduct that it considers to have been lawful, or to invite an outside prosecutor to consider such a prosecution. Would you try to send someone to jail for conduct you thought was legal and beneficial to the national security?

I go back to the whole issue about the courts: while the DoJ is certainly correct in providing opinions on the legality of any particular course of action (no matter how ridiculous those opinions may be), those opinions are not binding on anyone else. (It's even questionable whether they're binding on the DoJ, Lederman notwithstanding.) It's an open question whether Mukasey or any other AG would be correct to refuse to prosecute something like this --say, under instructions from Congress -- and whether such refusal would constitute an impeachable offense. (As a practical matter, Congress ain't going to do squat about this. We all know that.)

As usual, the comments at Balkinization are worth reading.

Update II:

Here's the post by hilzoy that Lederman refers to.