In fact, I disagree strongly with Marty on this. The last line of defense, the ultimate judgment of what is best, is with a seasoned officer, in particular, one who will exercise the professional judgment required to just say "No" to an eager, junior league President anxious to do what is necessary for political expediency or ideological positioning or an overbearing Vice-President, intent to pressure individuals with the levers of power (including "legal programs").
I've been letting the "pass" that he is giving to the Administration on torture this week simmer on the back burner.As I see it, he is not fit to carry out the office.
I disagree with Marty.
We cannot allow a Neuremberg defense (a "reasonable reliance" test) in matters that are so grave.
NO OFF-THE-HOOK STATUS ON GRAVE MATTERS
Marty asks, could the CIA operatives reasonably have relied on advice from OLC. That probably covers 90% or even 99% of the "daily operating" case issues. But, ultimately, there is no substituting a legal opinion for knowledge of right and wrong, for expediency over propriety (or wise judgment). In other words, we can rightfully have expected that these CIA officers could have and should have turned down a "program" that included ... torture techniques that the most experienced in their own profession eschew, both on the technical merits of the techniques and on the broader moral implications of them. In fact, I disagree strongly with Marty on this. The last line of defense, the ultimate judgment of what is best, is with a seasoned officer, in particular, one who will exercise the professional judgment required to just say "No" to an eager, junior league President anxious to do what is necessary for political expediency or ideological positioning or an overbearing Vice-President, intent to pressure individuals with the levers of power (including "legal programs").
Does that mean we might face the horrible prospect of prosecuting an otherwise patriotic, nice-guy CIA officer? Yes. So what. People get sued all the time (including cops and firemen). Let them put their case as to why waterboarding was necessary to the test, as mitigating evidence, and see if a seasoned court accepts it. That seems (to me) to align the incentives in the process properly. Why just accept that all government actions are immunized? The people making the decisions on just how far to go ought to be constantly constrained by the knowledge that going too far is costly, to them. What better way to strike a balance is there? Passing out immunities is no answer and only allows people to go quickly to the maximum, lest they get criticized for not trying "everything" in pursuit of the goal.
THE SPECIAL CASES - CONSPIRACY AND STAGED IDIOCY
Marty considers two 'special cases'. Did the CIA (under the 'unitary Executive' or not) conspire to do something illegal? ML seems to give them a pass on this. I see no reason to do so, before a criminal investigation is fully completed. From the video taping episodes, we already know that these people knew that what they were doing quite possibly crossed the line, was not fit to show up on the front page of the NY Times, as it were. Secrecy is not always a matter of efficiency, it is also a key indicator of expediency. Again, Mukasey's non-action is not faithful to serving justice.
If nothing else, it will end the perception among Federalist-Society-cum-OLC hopefuls and the Texas-Justice crowds that a future GOP Executive can 'do anything', if there is a fancy enough legal opinion for it, until the courts decide a case...
The second 'special case' is that of a Justice Department that knowingly gave legal advice that was poor. Given the gravity of the charges - we have United Nations officials condemning the U.S. this week, if that is any indicator of how poor a judgment was reached, there ought to be an investigation of how "legal conclusions" were reached, especially because there is no prima facie case for the legality of water boarding (or any torture), since cases of water boarding specifically have resulted in successful prosecution and sentencing in the past. The effort to sweep the past under the rug by Mukasey should be rejected, in favor of a criminal investigation into the construction of those opinions.If nothing else, it will end the perception among Federalist-Society-cum-OLC hopefuls and the Texas-Justice crowds that a future GOP Executive can 'do anything', if there is a fancy enough legal opinion for it, until the courts decide a case...
SMUG
Some observers have suggested that "mistakes were made" and we've moved past that. How smug. Normal criminals pay for their mistakes, one way or the other. Why should we sit idle while the sophisticated ones get Scotter-Libby justice? What's more, as AS has pointed out, it wasn't that 'mistakes were made', it was that deliberate, concerted, decisions were taken and the responsibility for those should not escape prosecution in the People's Court, just because the DOJ was complicit in the crimes ...
So, the conclusion is that Mukasey is a dud and should be removed. If there isn't the political will to do it, then it is important to make sure the candidates for office do not let justice go unserved.
