It comes down to this: the Bush Administration believes it is above the law, and Congressional Democrats concur. There is no other way to explain the unwillingness of the Democrats to force the confrontations that would reassert the primacy of law. The Administration demonstrates, time and again, that as long as it is allowed to get away with anything, it will do whatever it wants. The rule of law and the balance of powers are irrelevant. Obsolete, perhaps. Perhaps quaint. When Nancy Pelosi took impeachment off the table, it signaled to the Administration that it had a green light to function as a monarchy. If it wasn’t going to be held accountable for past crimes, it might as well continue committing them, abusing its power, and overstepping its authority whenever and however it pleased. The Democrats would not force confrontations, because to do so would inevitably lead to questions of consequences. Eliminate the very question of impeachment, and there are no consequences. All is allowed. All is acceptable. All is tacitly permitted.
At his confirmation hearings, Michael Mukasey gave lip service about being an independent Attorney General. Since taking office, he has been nothing but an Administration lackey. Yesterday, he proved it once again. First, Mukasey told Congress that he would not investigate waterboarding, if those who committed it had done so with DOJ approval, and he also explained that he will not investigate warrantless wiretapping, if it was ordered by the president, under DOJ advisement. The rationale, if you can call it that, is made clear in this exchange between Mukasey and Rep. Bill Delahunt, as paraphrased by emptywheel:
Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.
MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.
Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.
MM: Immunity connoted culpability.
Delahunt: This is brand new legal theory.
MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.
Delahunt: Let’s concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.
MM: If you’re talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn’t. But yes, that bars the person who relied on that opinion from being investigated.
Delahunt: I find that a new legal doctrine. The law is the law.
MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.
Delahunt: Is there a legal precedent.
MM: There is practical consideration. I can’t cite you a case.
Now, keep in mind that Mukasey is not saying that these acts may not have been illegal, nor is he saying that there are questions about whether or not these acts were even committed. He is saying that neither the facts nor the law matters. He is saying that if officials of the Department of Justice give permission for the commission of possibly illegal acts, those perpetrating said acts are automatically immunized from legal consequences. As dday put it: