TheAgitator.com
The Mukasey Paradox
Tuesday, March 4th, 2008Jonathan Turley meshes Attorney General Michael Mukasey’s positions on torture (it isn’t illegal if the president’s legal advisers say it isn’t) and his refusal to entertain contempt charges against Harriet Miers and Josh Bolton (it isn’t illegal if the president orders it) to come up with Mukasey’s perfect paradox:
Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.
The predictable results is an unchecked executive. Turley finds the logic “beautiful.” I’d probably use some other adjectives.
Thanks to Jonathan Blanks for the tip.
That’s doubleplusgood
Actually the sitting president is immune from all criminal laws.
Actually, ParatrooperJJ, he isn’t.
Article I, Section 3, Clause 7 of the US Constitution states: “Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
So, according to this, a President must first be impeached. After this condition has been met, and in the case of a conviction on the impeachment, the President is then subject to the law. He is also subject to the law once he is out of office, be it by impeachment or by his time just being up.
In a manor of speaking, Bush isn’t subject to the law. If Bush were impeached, the cure would be worse than the disease. And in the end, Cheney would just pardon him anyway.
We’d have to impeach them both. I think that would make Nancy Pelosi the first woman president. Muahahahahahaha! Let’s do it! Come on! It would be fun!
That sounds sensible to me. Well, more sensible than letting Bush & Cheney get away with all of this.
I hate to be a fly in the ointment but I see 3 major problems with Turleys article.
1. Contrary to Turleys assertion that waterboarding “is not only a crime under U.S. law, it is a well-defined war crime under international law.” it isn’t true. There is still a lot of argument on both sides whether waterboarding violates US law and the geneva conventions are vague enough that you can argue detention itself is torture. If congress wanted to specifically ban the CIA from waterboarding, like they did with the military, then it would be an easy matter to pass a law banning it… but they haven’t. The fact that the opposition party, which happens to hold the majority in both houses, wants to cry, bitch, and moan about the president being torture happy but not actually taking the time to ban it should tell you something. I’ve got $20 bucks ( I know that phrase seems to piss some of you off) that says this issue goes away if the Dem candidate wins the presidential election. We won’t hear word one about waterboarding again until there is another Repub in the white house.
2. Mukasky was a compromise pick for AG, he isn’t a bush guy and his name was proposed by Schumer. It shouldn’t come as a surprise to Turley that schumer backed his own suggestion.
3. US attorneys serve the administrative branch, not the legislative branch. They can be fired for any reason the president chooses. If he doesn’t trust brown eyed lawyers, it’s perfectly within his power to fire all brown eyed US attorneys and replace them with blue-eyed ones.
Just because you don’t like his reasons or his positions doesn’t make them illegal.
Reminder that, after WWII, the US executed a number of Japanese for war crimes including torture, particularly waterboarding.
I look forward to the day the Republican platform includes a noose and a trapdoor.
I take part of that back, i had forgotten that the senate finally passed the waterboarding ban that essentially makes the CIA play by the same rules as the military. It still hasn’t been sent to the president who has threatened to, and should, veto.
…and, leaving all the evilbushitlersinistercheney jive behind for a moment, is there any president over the last 75 or so years who *hasn’t* pushed the envelope of executive power? who *didn’t* take large and small - and possibly not-quite-legal - steps to increase their power, and bypass congress?
i can think of MAYBE ford, and MAYBE carter as the only 2 possible exceptions. but guess what? the ford/carter years, 1974-1980, were among the very worst years of this century for the country.
so what do we do to check executive power? bearing in mind the absolutely miserable results of the (somewhat) restrained ford & carter, what *should* we do?
Tokin, why stop with foreign nationals? There are so many other ways we could use it to further whatever need the State has! Obviously prison isn’t working to curb drug users and drug pushers. Why not use various “incentives” to “re-educate” these anti-American citizens?
We should ratchet it up a notch. Sure waterboarding is effective, but it seems so time consuming! The first time, the guy is never going to talk because he/she knows they aren’t going to die. It might take a half dozen or so applications before terror even begins to set in. This is wasted time. Time is money. We need to use other methods to bring about the desired change of attitude quicker.
I’ll leave the details to others.
Nando - That’s why I said sitting…..
This is what passes for legal reasoning. My undergraduate degree was in philosophy. So, in my opinion, I learned the true rules for critical thinking. i.e. a modus ponens, the difference between validity and soundness, the informal fallacies in reasoning like the slippery slope argument. This training actually made law school very difficult because legal reasoning is a bastardization of rules of critical thinking
I remember a tenured law school professor chiding me for chiding him on his slippery slope argument. It took me a while to understand that legal reasoning is about winning, not the truth.
ParatrooperJJ
Most prosecutors have chosen not to prosecute sitting presidents out of respect for the office, but VPs have been indicted while in office (Aaron Burr was indicted for Hamilton’s murder while still in office and Agnew was indicted for taking bribes as governor of MD), so what makes the President so different?
In the case of Nixon, he was going to be indicted but the prosecutor, Leon Jaworski, decided to let the impeachment proceedings play themselves out first. Even Clinton struck a deal on his last day as President to avoid prosecution since Ken Star chose to allow the impeachment to proceed first, before indicting him. This seems to imply that they could indict if they wanted.
Tokin42:
In legal systems there is a thing called “precedent.” It defines (as in “well-defined”) how “vague” laws have been interpreted in the past and thus, unless there is compelling reason to do otherwise, how they should be interpreted in the future. In the case of waterboarding, as has been mentioned, the US *itself* set the precedent that waterboarding is defined as torture when it prosecuted and executed Germans and Japanese for waterboarding Allied troops in WWII. The US expressly made the argument that waterboarding = torture under international law and the Geneva Conventions. The US won those cases, so the US interpretation has become precedent, thus defining waterboarding as TORTURE.
Turley is, in fact, 100% correct. Only in the narrow sense that waterboarding is not specifically mentioned in the applicable laws and conventions could one argue that waterboarding is not “well-defined” as torture. But interpreting the laws and conventions that way is wrong and deliberately obfuscatory, meant to obscure the issue that waterboarding has been defined, by the US and the international community, as torture for almost sixty freakin’ years.
Japanese water torture is not the same thing as waterboarding. The difference is, unlike the japanese and the spanish, you aren’t going to actually drown. You may call that semantics, but I think there’s a big difference there. Those japanese and germans were tried for drowning soldiers, not just making them think they were.
Since everyone seems to agree, at least for all we know, it has been used very rarely and only on high value targets and even critics like John Kiriakou ( http://www.npr.org/templates/story/story.php?storyId=17181403 ) say it was very effective.