Belaboring the Obvious

Friday, November 02, 2007

Mukasey's Dilemma....

Much is being made at the present moment about Mukasey's predicament with regard to his refusal to make any definitive statements about torture.

While Mukasey has prevaricated about not only that issue, but of Bush's notions of the "unitary executive" and voter ID issues, as well, the torture issue is paramount. On this matter, he’s being evasive, because acknowledging the obvious might force him to investigate the obvious, and that means investigating the President.

Many years ago, Gen. Curtis LeMay said that had the U.S. lost WWII, he and others might well have been tried and convicted of war crimes (speaking of the Army Air Force's firebombing of whole cities in Germany and Japan and the use of nuclear weapons on civilians). It was his way of saying that the victors get to make the rules.

We made the rules at the Nuremberg trials. In those trials, we codified in international law and precedent that, even in time of war, some actions are intolerable, that torture and aggressive war could not be justified, that illegal acts shocking the conscience and perpetrated through locally legal orders could not be countenanced. There was a larger order and sensibility offended by such actions, and justice could and should be applied to those who gave such orders, and to those who carried out those orders.

If Mukasey's been evasive on the definition of "waterboarding" (more properly called "partial drowning interrogation," it's not just because he has some misbegotten fealty to George Bush (although that may figure into his thinking, too). It's because he knows that hiding behind a phony OLC determination--under the standards applied in the Nuremberg trials and in later international law--is no defense, if he fails to prosecute those who have violated treaty law. He himself becomes complicit in the institutionalization of torture, extraordinary rendition and the defense of aggressive war if he chooses to endorse legal sophistry which seeks to offer a patina of legitimacy for acts illegal under the "supreme law of the land" clause of Article VI of the Constitution.

What Mukasey has forgotten, though, is that the "good Germans" who pleaded, "I didn't know," were found just as culpable as those who did, in the eyes of history. Looking the other way to avoid seeing the actions of war criminals is to avoid the truth.

Is that behavior a hearty recommendation for an Attorney General of the United States?

If Judge Mukasey had any reservations about the conditions under which he was to take the job of Attorney General, he could have declined the appointment. Now that he is determined to follow the process to its conclusion, he might well consider that he, in other courts, may, in future, become a war crimes suspect himself if he avoids investigation and prosecution of war crimes. If he clings to an OLC determination on torture that has no more standing in international law than Hitler's Enabling Act, international courts may be no more sympathetic to his defense than the Nuremberg International Military Tribunal was of Albert Speer's.