The NYT argues today that Michael Mukasey cannot condemn waterboarding as torture before he becomes AG because that would risk war crime prosecutions against many military and CIA personnel and those who authorized them, i.e. Bush, Cheney, Rumsfeld, et al. In my dreams. Jack Balkin’s riposte is more likely:
Do not believe it.
The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members– and those obeying its orders– will never be held to account in any American court of law.
To be sure, if Bush Administration officials travel abroad, they may be indicted and tried for war crimes. But if so, that is already true, and Judge Mukasey’s statement would not trigger liability: it would merely be additional evidence– if any were needed– that waterboarding is a war crime.
The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney’s terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.
He is. This is a critical cojones moment for the Democrats, and, especially Schumer. Are they finally going to take on this administration’s precedent of authorizing illegal torture that wrecks our ability to get reliable intelligence and destroys our moral standing in the world? Or do they not have the steel to do what’s right?
The Dish 