February 8, 2008

Durbin stands up to Mukasey

In a very interesting response to the AG's refusal to investigate waterboarding because “no one who relied in good faith on the Department’s past advice should be subject to criminal investigation for actions taken in reliance on that advice.” Durbin points out the flaw in that response:
"However, I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law”"
Which, not to blow my own horn, was my point when I first posted on this. I agree that we should not hang out someone to dry who did their job (although that whole "following orders" thing sounds a bit hollow too), but certainly we should investigate how this process was legalized.

Durbin then slams the AG pretty well. He points out the that as a nominee, Mukasey promised to review the "OLC opinions regarding surveillance, interrogation techniques, and detention standards"--a promise that he had not fulfilled. But then Mukasey told the committee that the torture memo writer (Steven Bradbury) had served the OLC as an exceptional lawyer. How did Mukasey know, asked Durbin, if he hadn't reviewed the OLC decisions? Good point. Reminds me of Mukasey's predecessor who assured us that no lawyers were fired for improper reasons. Why were they fired? He had no idea. But nothing improper.

In this case, Bradbury wrote an opinion:
on so-called “combined effects,” which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The New York Times, then Attorney General Alberto Gonzales approved this opinion over the objections of then Deputy Attorney General James Comey, who said the Justice Department would be “ashamed” if the memo became public.
That was wrong, of course, because what Comey didn't realize was that the moment Gonzales took the AG position, he did away with the ability to feel shame.

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