Editorial Column: Attorney General Mukasey Uses Infamous ‘Nixon Defense’ to Justify Torture and Domestic Spying


December 2, 2008 – When it comes to protecting George W. Bush and his administration, Attorney General Michael Mukasey is stretching legal arguments as far as his predecessor Alberto Gonzales ever did – now even invoking the “Nixon Defense” for justifying presidential wrongdoing.

This week, Mukasey argued that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.

“There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful,” Mukasey said during a Dec. 3 roundtable discussion with reporters.

Mukasey’s argument is, in essence, the same as Richard Nixon’s infamous declaration in his 1977 interview with David Frost that – in the context of Nixon’s illegal wiretappings, black-bag jobs and infiltration of antiwar groups – “when the President does it, that means that it is not illegal.”

Nixon’s approval of the so-called Huston Plan, which proposed these actions against adversaries deemed national security threats, became one of the articles of impeachment filed against Nixon before his resignation in August 1974. Nixon defended his decision as necessary to protect the country.

In the wake of the 9/11 attacks, President Bush, his White House legal advisers – and now Attorney General Mukasey – resurrected Nixon’s concept of a President operating above the law to defend the nation.

As with the “Nixon Defense,” Mukasey maintains that – at least when Bush and his subordinates are involved – a justifiable intent negates any violation of law. In other words, if Bush or his advisers decide that some illegal act is necessary for national security, the act becomes, effectively, legal.

Mukasey is wrapping his extraordinary argument in the context of protecting Bush’s subordinates – at places like the Justice Department’s Office of Legal Counsel – from second-guessing for giving the President advice on what he can do in engaging in acts that would be illegal if done by someone else.

“If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future,” Mukasey told the reporters.

Conyers Complaint

Rep. John Conyers, chairman of the House Judiciary Committee, immediately took issue with the “breadth” of Mukasey’s statement “and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law.”

Conyers reminded Mukasey that reams of evidence – including testimony from career military and law enforcement officials – show that top White House officials may have broken the law by authorizing torture and warrantless domestic surveillance.

“The public record reflects ample warning to administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers … on interrogation issues and the stark warning by then-Deputy Attorney General [James] Comey that the [Justice] Department would be ashamed if the world learned of the legal advice it had given on torture issues,” Conyers said in a letter to Mukasey.

Indeed, Maj. Gen. Antonio Taguba, who led the investigation of abuses at the Abu Ghraib prison in Iraq, said “there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Conyers added, “Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to ‘If the detainee dies you’re doing it wrong’ — or the Department lawyer who advised him — justifiably believed that approach comported with the law?”

Conyers was referring to minutes of a discussion on Oct. 2, 2002, when Jonathan Fredman, chief counsel to the CIA’s Counterterrorism Center, told U.S. military officials how interrogators could use the “wet towel” technique, known as waterboarding, to extract information from detainees.

“It can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function,” Fredman said, adding that the “wet towel” technique would only be defined as torture “if the detainee dies.”
“It is basically subject to perception,” Fredman said. “If the detainee dies you’re doing it wrong.”
Fredman’s comments prompted Lt. Col. Diane Beaver, then the chief military lawyer at the U.S. military base at Guantanamo Bay, Cuba, to respond: “We will need documentation to protect us.”

Conyers’s letter signals a strong possibility that his investigation into the Bush administration’s interrogation practices will continue when the 111th Congress convenes in January.

Mukasey’s Resistance

Like Attorney General Gonzales before him, Mukasey has stonewalled congressional inquiries into the Bush administration’s counterterrorism policies by refusing to release top-secret documents about the programs.

Mukasey also rebuffed a request by Conyers in June to appoint a special prosecutor to investigate whether Bush and senior members of his Cabinet committed war crimes by authorizing CIA and military interrogators to use harsh tactics against detainees at Guantanamo Bay and in Iraq.

That request followed an investigation by the International Committee of the Red Cross into interrogation practices at Guantanamo Bay, which “documented several instances of acts of torture against detainees, including soaking a prisoner’s hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball.”

Mukasey’s comments also would seem to undercut work by the Justice Department’s Office of Professional Responsibility, which has spent four years probing the infamous Aug. 1, 2002, “torture memo” addressed to then White House Counsel Alberto Gonzales and written by former Office of Legal Counsel attorney John Yoo and signed by Yoo’s boss Jay Bybee.

That OPR probe is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” according to H. Marshall Jarrett, the head of the watchdog office.

The probe has centered on Yoo’s use of an obscure health benefits statute to justify use of brutal interrogation tactics as long as they don’t cause “death, organ failure, or serious impairment of body functions.”

Jack Goldsmith, who succeeded Bybee as head of the OLC, withdrew the “torture memo” in fall 2003, calling it “sloppily written” and “legally flawed.”

Nevertheless, the opinion from the Office of Legal Counsel – which is responsible for advising the President on whether actions are lawful and constitutional – gave the White House cover for decisions on harsh interrogations that may have already been underway.

Last April, President Bush told an ABC News reporter that he approved of meetings of a National Security Council’s Principals Committee where senior officials discussed specific interrogation techniques that the CIA could use against detainees.

The Principals Committee included Vice President Dick Cheney, then-National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet and Attorney General John Ashcroft.

No Legal Accountability

Mukasey’s embrace of the Nixon Defense – essentially clearing anyone who acted under presidential authority with the intent of protecting the nation – means that none of the participants would face any legal accountability.

Indeed, Mukasey told the reporters that he saw no reason for President Bush to even consider granting blanket pardons.

“In those circumstances, there is no occasion to consider prosecution and there is no occasion to consider pardon,” Mukasey said.

Nevertheless, there are ongoing investigations being conducted by Mukasey’s Justice Department into actions related to Bush’s “war on terror.”

In a semi-annual report sent to Congress, Inspector General Glenn Fine said he is continuing to probe the Justice Department’s involvement with the terrorist surveillance program and the FBI’s use and abuse of exigent letters where agents sought phone and e-mail records. 

There is also the investigation by John Durham, an assistant attorney general in Connecticut who was appointed special counsel earlier this year to investigate the destruction of videotapes in 2002 that documented CIA interrogators waterboarding detainees.

The tapes were ordered destroyed, according to published reports, because the individuals overseeing the interrogations feared criminal prosecution if the tapes were leaked.

During his roundtable talk with reporters, Mukasey again refused to say whether he believed waterboarding was torture.

At his Senate confirmation hearings, Mukasey balked at answering that question, almost derailing his nomination, which was saved by the support of Democratic Sens. Charles Schumer and Dianne Feinstein.

Mukasey first insisted that he hadn’t been briefed on the practice, and later maintained that since the use of waterboarding had been suspended, there was no reason for him to give an opinion.

That argument – asserting that he had no responsibility for investigating acts like waterboarding since they had occurred before his arrival at Justice – foreshadowed his current assertion that it would be wrong to reexamine actions by Bush and his subordinates earlier in the “war on terror.”

Sanctioned Acts

Some of those controversial techniques also appear to have been sanctioned by the Justice Department, before Mukasey’s arrival.

For instance, CIA officials pressed the Justice Department’s criminal division for assurances that they would not be prosecuted under anti-torture laws if they followed guidelines on aggressive interrogation techniques. The officials appealed to the head of the Criminal Division for these guarantees, to Michael Chertoff, who is now Secretary of Homeland Security.

Three years ago, when Chertoff was facing confirmation hearings to be Homeland Security chief, the New York Times cited three senior-level government sources as describing Chertoff’s Criminal Division as fielding the questions from the CIA.

“One technique the CIA officers could use under circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning,” the Times reported. In other words, Chertoff appears to have green-lighted waterboarding.

Chertoff reportedly did object to some other procedures, such as death threats against family members and mind-altering drugs that would change a detainee’s personality, the Times reported

During his Senate confirmation hearings in February 2005, Chertoff denied providing the CIA with legal guidance on the use of specific interrogation methods, such as waterboarding. Rather, he said he gave the agency broad guidance in response to questions about interrogation methods.

“You are dealing in an area where there is potential criminality,” Chertoff said in describing his advice to the CIA. “You better be very careful to make sure that whatever you decide to do falls well within what is required by law.”

Nevertheless, the evidence continues to build that Chertoff’s assurances gave CIA interrogators confidence they would avoid prosecution as long as they stayed within the permissive guidelines devised by Yoo and Bybee.

Concerns about Obama

That evidence has lead civil rights organizations to press President-elect Barack Obama to aggressively investigate the Bush administration’s actions once he is sworn in next month.

Obama has not indicated whether Eric Holder, his choice for Attorney General, will pursue an investigation into the Bush administration’s policies, particularly issues related to torture.

In response to press reports about Obama shying away from such a probe, Michael Ratner of the Center for Constitutional Rights said “one of Barack Obama’s first acts as President should be to instruct his Attorney General to appoint an independent prosecutor to initiate a criminal investigation of former Bush administration officials who gave the green light to torture.”

In an article published in the magazine The Progressive, Ratner pointed to a statement Holder made a few months ago in which the Attorney General designee said the “American people” are owed “a reckoning.” 

Ratner said anything less than a full-scale criminal investigation – a substitute like a Truth Commission assigned simply to ascertain the facts – would be unacceptable.

“If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush administration who violated that Constitution, broke our laws, and tarnished our values,” Ratner wrote. “To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.

“This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.”

Jason Leopold has launched a new Web site, The Public Record, at www.pubrecord.org.

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