PLRC Blog

This blog supplements Chapter 8 of America in Peril

8 February 2008

The Attorney General of the United States, head of the cabinet-level Department of Justice, is the nation’s top law enforcement officer. It is his/her duty to guard our human and civil rights as outlined by the US Constitution. We have seen how John Ashcroft and Alberto Gonzales, the first two appointed by George W. Bush, failed in that mandate. Now we have a third Bush appointee – Michael B. Mukasey. Is he a hope for something better? Do not forget the old cliché — the more things appear to change, the less they actually do. Let’s look at Mukasey’s track record so far.

Following the 9/11 attacks, a Justice Department dragnet rounded up 1,182 “special interest” detainees. According to an Associated Press dispatch (New York Times, 15 October 2007) it was Mukasey, then chief federal trial judge for Manhattan, who approved the secret warrants for that Muslim roundup. Congress authorized material witness warrants in 1984 to allow holding people who might flee before testifying, and barred the public from hearings regarding such detainees. What actually happened after 9/11 was that family and lawyers couldn’t even contact detainees, or find out if or where they were being held. And of course all this makes no sense when the Bush administration had already escorted 140 Saudi nationals and bin Laden relatives safely out of the country.

In October 2007 Bush chose Mukasey to replace deposed and discredited Attorney General Gonzales. Torture was a hot political issue at that time and “waterboarding” (simulated drowning – a technique dating back to at least the Spanish Inquisition) became the epitome of torture. Of course the senators at Mukasey’s confirmation hearing wanted to know how this prospective top law enforcement official defined torture. When asked about waterboarding, Mukasey feigned naiveté, saying: “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.” (Dan Eggen and Paul Kane, Washington Post, 19 October 2007) One senator called that a massive hedge. Mukasey’s stonewalling almost derailed his nomination. Nevertheless, the Senate confirmed him when he assured the committee he would review the legality of waterboarding and report back.

Then another hot issue surfaced. In late 2005 the CIA destroyed interrogation videotapes of two Al Qaida suspects. This raised questions about the government withholding evidence from the courts, Congress, and the 9/11 Commission. In December 2007 two federal district judges called hearings to determine if destroying the tapes violated their court orders to preserve all evidence of interrogation techniques used at Guantanamo (although not taped at Guantanamo they still evinced the techniques used there). Lawyers in Mukasey’s Justice Department urged the judges to give them time to investigate.

Likewise in Congress, the Justice Department urged lawmakers to hold off questioning witnesses about the tapes pending the joint Justice Department/CIA investigation. Mukasey would not give Congress any information and, in spite of his promise to the Senate, refused to issue an opinion on whether waterboarding is or is not torture. One senator commented: “It’s like you’re opposed to stealing but not quite sure bank robbery would qualify.” (New York Times, 30 January 2008)

When Senators pressed Mukasey during late January 2008 hearings if suspects were waterboarded and if Bush approved it, he replied: “I can’t speak to whether people were in fact waterboarded or whether the president approved it.” He said he was not authorized to speak about the past and, given “that waterboarding is not part of the current program and may never be added to the current program, I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality.” (Manu Raju, TheHill.com, 30 January 2008) So much for Mukasey’s confirmation promise!

During that same hearing Mukasey said the limit of enhanced interrogation techniques should extend to the “shock-the-conscience” standard – that the “heinousness of doing it, the cruelty of doing it” should be weighed against the information obtained. A senator retorted: “You’re the first person I’ve ever heard say what you just said. Matter of fact, it shocks my conscience.” But when asked if he would consider waterboarding torture if he were the victim, he said: “I would feel that it was.” (Manu Raju, op. cit.)

In early February the Bush administration admitted that waterboarding had been used earlier on three occasions as part of the CIA’s enhanced interrogation practices. Mukasey then refused House Judiciary Committee pressure to open a criminal investigation into waterboarding, saying: “Waterboarding, because it was authorized to be part of the program” approved by the Justice Department at the time “cannot possibly be the subject of a Justice Department investigation. That would mean that the same department that authorized the program would now prosecute someone for taking part” in it. (Dan Eggen, Washington Post, 7 February 2008)

On this same day White House spokesman Tony Fratto said waterboarding was legal and that Bush could authorize it again “under certain circumstances,” such as when there is “belief that an attack might be imminent.” He said the top intelligence officials “didn’t rule anything out.” (Greg Miller, Los Angeles Times, 7 February 2008) Such re-authorization would violate the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and the 2006 revision of the Army Field Manual on torture. But the CIA is not governed by Army regulation and military commissions, and it is questionable if culpability can be proved for what takes place in secret overseas prisons. Compounding the matter further, the CIA uses former intelligence officers hired as private contractors to conduct interrogation. Their names, of course, are secret.

So, what about this new Attorney General of the United States. We certainly can’t expect him to safeguard our Constitutional rights and give germane legal advice to the president. He is obviously just another puppet chosen to legalize whatever illicit behavior the administration chooses to follow. Mukasey will not improve anything.

Bob Aldridge

My book America in Peril may be ordered from Hope Publishing House, P.O. Box 60008, Pasadena, CA 91116. (360 pages, $16.95 plus $3 shipping)

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