Waterboarding, lies and dishonor

By Creature

Today the NYT reports on the central dilemma facing attorney general nominee Michael Mukasey with respect to his hedge on waterboarding and its illegality. As Atrios has been pointing out since this controversy arose, if Mukasey admits that waterboarding is illegal, which it is, he must then, as attorney general, begin prosecuting those who authorized its use.

While I would like nothing better than to prosecute Bush, Cheney, and Rumsfeld for authorizing such morally reprehensible actions and dragging the United States down to Hussein levels, JB, who put the Balkin in Balkinization, reminds us that prosecution is not so cut and dry:

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law.

Of course the administration would find a way to "ensure that its members-- and those obeying its orders-- will never be held to account in any American court of law." They have covered their collective asses, though I would bet the legal arguments contained in the Office of Legal Counsel's [OLC] opinions are rather flimsy.

So, why not just admit that waterboarding is illegal. JB continues:

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney's terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

But, here's the thing, either way Mukasey is entering an "administration of liars and torturers." If he didn't know this when he accepted the nomination, he certainly does now. And, while I accept JB's legal interpretation, I do still think Mukasey's hedge is more about actual prosecution, or at least the perceived worry of such prosecution.

Personally, I don't think Bush/Cheney give a flying fuck if they are proved to be an administration that "repeatedly lied to the American people and brought shame and dishonor on the United States of America." They will hide behind the terror banner until their last breath, and if only it was a waterboarded breath, regardless of the destruction and disgrace they have caused. Their disdain for everything America stands for, or stood for, is unparalleled.

The fact that Mukasey [guided by Addington] determined that he must hedge on the legality of waterboarding should be enough to start impeachment hearings, if not criminal prosecutions.

(Cross-posted at State of the Day.)