However, Michael Mukasey, the current Attorney General for the Bush administration, seems to view himself primarily as a defense attorney for Bush administration lawbreakers.
In a speech to law school graduates at Boston University today, Mukasey was very worried about the harsh public criticism received by Justice Department lawyers like John Yoo.
Today, many of the senior government lawyers who provided legal advice supporting the nation's most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions --suggestions that are made in a manner that is almost breathtakingly casual -- that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.
To the contrary, Mukasey believes that Justice Department lawyers should be exempt from civil or criminal liability for their actions because of the circumstances of the time:
those public servants were often working in an atmosphere of almost unimaginable
pressure, without the academic luxury of endless time for debate. Equally ignored is the fact that, by all accounts I have seen or heard, including but not limited to Jack Goldsmith's book, those lawyers reached their conclusions in good faith based upon their best judgments of what the law required.
But then again, Mukasey emphasizes that Justice Department attorneys believed themselves to be obligated to needed "to push to the limits of the law, to give policymakers and operators the most flexibility possible to confront the existential threat of international terrorism."
But this is precisely the question. Were Justice Department lawyers like John Yoo just giving legal advice concerning issues that were put to them in the course of their work on legal issues concerning national security? Or were Justice Department lawyers part of a larger effort on the part of the Bush administration to violate American and international law in their treatment of terrorist suspects and other matters.
Were Justice Department lawyers "pushing the envelope" in a good faith effort to be more effective in fighting terrorism or were they "pushing the envelope" in the sense of providing flimsy rationalization for clear instances of lawbreaking. In other words, were Justice Department lawyers giving ethical legal advice or were they acting like mob lawyers in providing justifications for routine lawbreaking.
Many facts have emerged which suggest that the Bush administration engaged in broad and systematic violations of legal prohibitions on torture and that lawyers like John Yoo were a part of both the conspiracy to break the law and perpetration of illegal acts. Facts concerning the use of waterboarding, severe sensory deprivation, and other forms of torture have emerged and it is evident that these practices are legally prohibited under several kinds of statutes. Moreover, top level officials of the Bush administration like Dick Cheney, Colin Powell, and John Ashcroft met to consider which of these illegal practices would be used.
In this context, there is a question of whether John Yoo's legal memos were part of an honest effort to think through the law or whether they were part of a conspiracy to provide legal cover for crimes against humanity. At this point, I'm not completely sure. Given the involvement of Bush administration "principles" in approving torture, there's a chance that John Yoo's memos were insignificant.
How can all of these questions be answered? How can it be determined whether or not there is evidence that American interrogators were engaged in torture? Whether top Bush administration officials were directing criminal activity? Or whether John Yoo's memos were part of a conspiracy to commit crimes against humanity?
The best way to answer these questions is for Mukasey to act as an Attorney General. Mukasey should launch an investigation into possible criminal activity by the Bush administration and appoint an independent or special prosecutor to oversee the investigation. If the prosecutor finds evidence of crimes on the part of Bush administration officials, he or she should indict those involved and bring the case to trial where defense attorneys can present their own facts and interpretations of the relevant laws.
If Bush administration officials are innocent of crimes, the best way to clear their names is to have a full investigation of the facts surrounding the interrogation of terrorist suspects in the panicked aftermath of 9-11. If prosecutors are able to establish guilt according to the standards of American law, then they should be convicted and subject to punishment just like any other offender.
I understand that Patrick Fitzgerald is done with the Scooter Libby case. Mukasey should appoint him.
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