Mukasey’s Bleating Conceals His Fear

BAAA! (photo: frankcheez)

Things were going along pretty well for the Bush Administration Alumni Association. Sure, they were out of their old offices, but things were good. Obama adopted their wars as his own, the economy has sputtered along long enough to have become (in the public’s mind) at least as much Obama’s fault as theirs (thus the cries of “deficits! deficits! deficits!” from those who launched us into two wars), and most of the BAAA have landed in cushy lucrative new digs.

Then Obama had to ruin it by getting bin Laden. Suddenly, all the old discussions are back — at least as far as torture goes — and this has at least some of them very worried, like Michael Mukasey.

Marcy’s take on Mukasey’s op-ed is that he’s worried about sullying his reputation. Says Marcy, “ultimately the torture apologists staked their reputation on a certain approach to terrorism. That’s their legacy. It’s all they’ve got.”

That approach was simple: the ends justify the means. For BAAA, that means crowing about the success of torture in leading to bin Laden, even if it’s not true.

What’s remarkable about this approach, when lauded by a former federal judge and former US attorney general, is that it flies in the face of decades of settled SCOTUS precedent and the plain text of the constitution. You want to search someone? You’ve got to get a warrant. You want to lock someone up? You’ve got to file charges and hold a trial before a jury. Youngstown made it clear that presidential authority is NOT without limits, though apparently no one in the Bush administration will admit to having read it.

Marcy is right, but she doesn’t go far enough. Mukasey isn’t simply worried about his legacy. He’s afraid of something much more substantive. Says Mukasey:

The Bush administration put these techniques in place only after rigorous analysis by the Justice Department, which concluded that they were lawful. Regrettably, that same administration gave them a name—”enhanced interrogation techniques”—so absurdly antiseptic as to imply that it must conceal something unlawful.

Rigorous analysis? I think not. There’s a strong case to be made that Bradbury, Bybee, and Yoo’s rigor was not in legal analysis but in pleasing their masters. Two years ago tomorrow, I summed up the evidence at the link above like this:

Selective citations in legal memos. Selective and misleading notification of Congress. Obstructing legitimate oversight. Attempting to sweep the record of the OLC out the door. This is the pattern of careful attention to detail exhibited by of the Office of Legal Counsel under Attorneys General Ashcroft and Mukasey.

These high ranking DOJ lawyers put “getting ahead” and “pleasing the boss” ahead of their duty to the Constitution of the United States and their own obligations as lawyers to follow the law where ever it leads. They sold their legal souls by providing the cover of law to practices so abhorrent that they are called not crimes against the state but crimes against humanity.

Tomorrow, two years later, BAAA will be back on the Sunday talk shows, bleating about torture. “But it worked!” they’ll cry.

Sorry, folks, but “the ends justify the means” is an excuse, not a legal justification, and as Marcy noted in her post, it’s also a lie. Getting caught on that one is the last straw for BAAA. Without, they’ve got nothing to shield themselves from prosecution — if not here, then elsewhere.

Fear. Can you smell it?

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