The NYT reports that Attorney General Michael Mukasey does not believe the Bush Administration needs to consider whether to pardon officials who were involved with the development of interrogation policies.
Mr. Mukasey, whose nomination as attorney general last year was threatened by his refusal to say whether he considered waterboarding to be torture, said the lawyers who authorized the surveillance and interrogation programs had done so in the belief that they were following the law.
“In those circumstances,” he said, “there is no occasion to consider prosecution, and there is no occasion to consider pardon.”
“If the word goes out to the contrary,” he said, “then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.”
Related Posts (on one page):
- AG Mukasey Says No Pardons Necessary:
- Will Bush pardon officials involved in controversial war-on-terror tactics?
The published and published accounts are otherwise, i.e. Jane Mayer. Are there other accounts to read? Today's irony: GWB says he was "unprepared" for war; certainly Addington and Cheney were not.
Thank you, Judge, for clearing up what I naively thought was a much more complicated issue.
Query: Would you mind extending your reasoning, by analogy, to any and all legal malpractice I might feel like committing during the duration of my career? Feel free to lobby Mr. Bush to issue an executive order to that effect on his way out.
I've never really liked proofreading, reading, or developing rational analysis of precedent through legal "research". I could also use the premiums I would no longer need to pay to put one of those fabulous putting machines in my office.
If you could go ahead and do that, that would be great. Thanks.
-Kilgore
BTW, if someone understands that the criminal law prohibits certain conduct but believes that the law is unconstitutional, and then they engage in conduct which they understand violates the statutory standards governing criminal liability, that person's belief that the law is unconstitutional is not a valid defense to a criminal prosecution. The only way a conviction can be avoided where there is a knowing violation of a statutory legal duty is if the law is in fact unconstitutional. Testimony as to the defendant's belief of the unconstitutionality of the law is completely irrelevant to the question of guilt.
For an example of how this works in real life, take a look at the Supreme Court's opinion in Cheek v. U.S., 498 US 192, where the Supremes held that a defendant could be acquitted if they believed that their conduct did not violate a known legal duty, even if that belief was objectively unreasonable, but further held that a defendant's belief that the law was unconstitutional was irrelevant for purposes of determining whether the defendant had intentionally violated a known legal duty.
If I had more time, I'd figure out how the ruling in Cheek plays out in the context of the information available to the public on the "torture issue." But I have to get back to work now.
So, if a party to a lawsuit makes a frivolous claim and the other side seeks sanctions, is it an absolute defense against sanctions to say I found a lawyer who said it was okay? Is the chosen lawyer immune from sanctions if he merely says it was his "honest" opinion?
That's my concern. The memos that I have read do not appear to be neutral analyses of the law, but rather advocacy briefs. And the position that undergirds the memos is so extreme (As long as the President says he is acting in national defense, his power is unlimited), that I have a hard time accepting that Yoo and Addington honestly believed they were following the law.
Psalm91 = Negotibus perambulans in tenebris?"
Sorry, but I forgot the Latin I learned in elementary school. Try again in English if you have something useful to communicate. Or perhaps your point is akin to Yoo's secret memos and the contents of Addington's safe; legal opinions which excuse wrongdoing but must be kept classified/or unintelligible so as to protect the non-perpetrators.
Legal malpractice is generally not punishable as a criminal offense. It's one thing to require a lawyer who made a careless mistake in giving advise to his client to pay for the damage caused. It's quite another to put him in jail for that.
As to the independent counsel issue, it appears from my brief perusal of the relevant regulation (28 CFR part 600) that Mukasey still has to make an initial determinationthat a criminal investigation is warranted before turning the matter over to independent counsel. In this case, it appears from his comments that he doesn't consider a criminal investigation to be warranted. Whether that judgment rests on solid factual and legal grounds is of course debatable, but I don't see where anyone else has a say in the matter so long as Mukasey is the AG.
Long story short, the suggestion that Mukasey should refer the matter to independent counsel because OTHER PEOPLE think Y and A should be prosecuted appears to be without legal support. Mukasey is the AG and it's his job to make the call in the first instance, at least based on my reading of the situation.
Um, yeah, I know. I was kidding.
Does this strike anyone as particularly comical coming from an administration known to pressure attorneys not to give an honest answer but to give an answer that may be (politically) acceptable in the present?
Has Mukasay actually made a formal determination in that regard? Or is he just expressing his personal opinion that there should be no prosecution because it could have "bad" repercussions?
Is there any law that prohibits the AG from asking someone like Fitzgerald to look at that question, without formally appointing a special prosecutor under the regs cited? Does anyone besides me see value in having an independent, non-political appointee look at the matter? If it's been done already, fine. Where's the report? What does it say?
But, I have another thought on all this. The pardon discussion now might just be a canard. I can imagine that Bush signed a carefully drafted prospective secret pardon years ago for all the people working on this that would be opened on the last day of his term or in the case of any trial of any of them. I am not aware of a requirement that public notice of pardons has to be given. This occurred to me last night. It would be consistent with the way Cheney and Addington work and Mukasey's resistance to hand over to Obama all the "family jewels" of the Office of Legal Counsel made me wonder whether such a thing my exist somewhere between the White House and the Justice Department. Or, maybe at the CIA.
Best,
Ben
If such a secret pardon exists, it would certainly be in Addington's safe, as that location has been off limits to literally everyone else, is reportedly the whereabouts of some of the as yet undisclosed OLC or other legal memos, and because he is one of the pardonees. Will he attempt and be able to take all of the records with him when he leaves the government?
I hear these pardons are located at Area 51 in Big Foot's personal safe.
I would certainly assume he can consult with anyone he wants, informally, or even appoint/retain counsel to advise him. But he still has to make the decision himself.
Anyway, that's my take.
[Negotibus perambulans in tenebris = The pestilence that stalks in darkness.
From the 91st Psalm. I think you're being razzed. Or worse.]
I see this asserted a lot, but is it actually written somewhere? Does the Justice Department routinely go after people on the grounds that "hey, they technically haven't accepted the pardon yet"?
I would be very skeptical of these sorts of claims about the implications of a pardon. I specifically don't buy the claim that a pardon would somehow place the recipient in greater legal jeopardy than they would be without the pardon due to the supposed imputation of guilt.
Think about it in practical terms. Suppose Bush pardon's an aide for "any and all crimes he may have committed against the U.S. from 2003 through 2008." The aide then "leaves the US," against the advice indicated in the post quoted above. He gets arrested and charged with committing a crime against humanity. You're telling me that the pardon now operates as an affirmative confession of guilt to the int's war crimes charge? How, exactly? First, the language of the pardon didn't specify any particular crimes. Second, the crime(s) for which he was pardoned only included crimes against the U.S. (which are the only crimes for which a president can issue a pardon). How can it be used affirmatively to establish guilt for a crime under intl law, which the pardon didn't reach in the first place?
The whole notion that the recipient needs to "accept" the pardon and thereby "accept" the guilt appears to be an urban myth. What a 1915 USSC case seems to say is that, if a defendant wants to avoid conviction on the basis of a presidential pardon, he must produce the pardon and introduce it into the proceedings. That's not the same as admitting guilt. Moreover, in the case of a blanket pardon for "any and all crimes X may have committed from 2003-08," what would the defendant be accepting guilt for, EVERY single offense he COULD HAVE committed during the period? It makes no sense.
[Negotibus perambulans in tenebris = The pestilence that stalks in darkness.
From the 91st Psalm. I think you're being razzed. Or worse.]"
Sorry, but using language few understand defuses the wit of the comment.
Re Mukasey, perhaps he should withhold judgment until the existing and open investigation into these sames issues has been concluded.
So said aide is on trial somewhere else. The prosecutor says: Did you accept this pardon and zuzwang occurs. If he says no, then he is subject to prosecution in the US, if he says yes. .
Congress invites the gal to testify, same scenerio. Now the issue is perjury.
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