If The President Does It, Then It's Not Illegal
Mike Mukasey, Attorney General of the United States, before the House Judiciary Committee today. (UPDATE: This is a paraphrase, not a transcript)
Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.
MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.
Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.
MM: Immunity connoted culpability.
Delahunt: This is brand new legal theory.
MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.
Delahunt: Let's concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.
MM: If you're talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn't. But yes, that bars the person who relied on that opinion from being investigated.
Delahunt: I find that a new legal doctrine. The law is the law.
MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.
Delahunt: Is there a legal precedent.
MM: There is practical consideration.
Delahunt: I can't cite you a case.
The Attorney General is saying that the President can do anything he wants, break the law any way he wants, as long as the President's own Justice Department, populated his own handpicked officials, validates it. And he's saying it directly to members of Congress, essentially telling them that they don't exist. They have no power to prosecute because the Justice Department won't take up the case, and the courts have no power to adjudicate because these are official state secrets. There is only one branch of government that matters.
JMM David Kurtz:
President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.