"Because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law"
In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers.
Mukasey's Paradox appears designed to play tricks with Congress. Its origins date back to Mukasey's confirmation hearings, when he first denied knowing what waterboarding was and then (when it was defined for him) refused to recognize it as torture. In fact, it is not only a crime under U.S. law, it is a well-defined war crime under international law.
The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States -- an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey's confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
When reduced to its purest form, Mukasey's Paradox is that government officials cannot violate the law -- but that because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law.
Consider that Mukasey took an oath under which he swore to uphold the laws of this country -- even if the violator is the president of the United States or his aides. That oath means that all laws must be upheld without exception. Except, according to his interpretation, that executive power is a form of constitutional law that creates exceptions to the enforcement of laws.
all of which only serves to tell us what we already knew, that, for george bush and his merry band of outlaws, the rule of law is only a subject for the history books...
Labels: Attorney General, Bush Administration, CIA, constitutional crisis, Department of Justice, executive power, executive privilege, George Bush, Jonathan Turley, Michael Mukasey, U.S. ConstitutionSubmit To Propeller