mukasey’s letter to congress re torture tapes: there’s really not too much there, beyond what’s plain on the face of it.

at the outset, let me acknowledge that
while there are some reasons to be skeptical
of michael mukasey, i don’t think his letters
today are among them. i was ambivalent about
his confirmation — but did feel he was a step
forward from ‘berto. i could be proved foolish
here, and very shortly so, but i think mukasey
can handle this investigation scrupulously.

we do know that mukasey is nothing, if
he is not independent — and i read his
latest as little more than that. i
think — as others have said — he
was more than a little perturbed
by some of the early congressional
offers of immunity in the fired u.s.
attys. scandal; so is it probable he wants
to be sure there are no precipitous
offers of immunity to torturers, tapers,
or tape-destroyers — or even to lawyers
whose opinions offered comfort to the above?

i think so.

other, very wise, people have written that
they see a conflicts of interest here, for
micheal mukasey — the putative conflicts
arising from his former role as a judge
in one of the terror cases that relied,
in part, on evidence from one of the taped
torture sessions. . .

i am not sure i fully-follow that line of
reasoning — i think any judge has some
small interest in not being “overturned
on appeal — and while this situation is
not exactly that one, it is akin to it.

so, are we seriously suggesting that as a judge,
michael mukasey’s sense of judicial legitimacy
would be so frail as to be afraid of
what this investigation might bring?
do we really believe he would, in any
way, stand for the burying of evidence
that the statements used in earlier
trials — some of which he presided
over — were derived, even in part,
from improper questioning
techiniques — a polite way to
say that they were very likely
the product of torture?

i think he will express indignation if
and when it turns out that govt. lawyers
offered him evidence that was derived from
torture. and he will appear, and be, all
the more courtly for having done so.

so with all due respect to my fellow bloggers,
i don’t see this concern as a very deep one. . .

i just don’t see that a series of in-
vestigations into how the tapes were
ordered destroyed, as well as into
whether anyone inside the DoJ [note:
long before mukasey arrived on the
scene] knew of the existence of the
tapes, when the various pleadings in
the various terror cases were filed
by DoJ lawyers — puts mukasey in any
real sort of conflicted position.

sure, he’d like to think that his earlier
decisions were based on solid evidence,
but unless someone thinks that — at the
time he ruled — mukasey had reason to
believe the statements were the product
of torture, this really isn’t very different
than a judge being asked to make additional
findings on a case remanded from a higher
court, back to his or her trial court.
mukasey’s primary goal, i think, will be
to make sure that impatial justice is done.

that is just my gut talking.

p e a c e

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4 responses to “mukasey’s letter to congress re torture tapes: there’s really not too much there, beyond what’s plain on the face of it.

  1. Its not necessarily that Mukasey made decisions on this as a judge, rather the decisions that he made, that I take issue with. And I do indeed believe that he knew that torture was involved. It is not just Mukasey however; it is the DOJ itself, for they are a critical party in the allegations surrounding the alleged destruction of the torture tapes. So, what you have is analogous to double hearsay; you have one conflict sitting on top of another conflict. Or, to use the relevant term of art; at least the appearance thereof. Appearance also happens to be the standard and Mukasey should respect it.

  2. . . .I take issue with as to the propriety of him leading this investigation. And I do indeed believe that he knew that torture was involved in the cases and applications before him. It is not just Mukasey however; it is the DOJ itself, for they are a critical party in the allegations surrounding the alleged destruction of the torture tapes. So, what you have is analogous to double hearsay; you have one conflict sitting on top of another conflict. Or, to use the relevant term of art; at least the appearance thereof. Appearance also happens to be the standard and Mukasey should respect it. . .

    i do hear you, bmaz — i just come
    out at a different place on this one.

    i’ve added emphasis to parts of
    yours, above, here, to highlight how
    our assumptions differ — and that leads,
    i think, to the differing results.

    that is — if one assumes mukasey knew the
    evidence was adduced via torture
    , then clearly,
    his admission of it would be an error of law — or
    worse. and i don’t think it likely that he knew.
    remember that at his confirmation hearing he called
    the bybee-yoo memos “a sin — worse than a mistake. . .”

    so, i think, until competent evidence is
    offered to suggest mukasey knew of the torture,
    he is capable of investigating. this is to say,
    for me, this is like fact-finding by a trial court
    on remand, under order of a higher court.

    it happens all the time.

    mukasey may not like the implication that
    he shouldn’t have admitted the evidence,
    but i don’t think that will stop him from
    doing a thorough job.

    similarly — i’ve only seen allegations that
    CIA lawyers were involved in the destruction.

    i’ve read nothing about DoJ lawyers okaying
    the destruction — nor have we seen anything
    indicating that the DoJ knew of the tapes when
    it made the sworn affirmations in the moussoui case,
    or the others. maybe i missed it, though.

    finally, the “critical parties” are now
    all EX-DoJ OLC people: bybee, yoo, and goldsmith.
    add to these, addington and gonzalez, while at
    the white house. these are the people who — at
    on cheney’s orders, and via his
    berating — authorized the torture;
    documented it, and i suspect — gave
    a head-fake [also ghost-approved
    by richard bruce cheney — just
    like the cheney to scooter libby
    wink and nod approval for outing
    valeria plame!] — which allowed
    the destruction of the tapes, as
    it became clear that someone, somewhere, was going to be able
    to uncover, or leak, the tapes.

    this last bit is my WAG, clearly. but i think
    that is where mukasey’s investigation will lead him.

    we’ll see. . .

    p e a c e

  3. nolo – What interview under oath of Jose Rodriquez? Are you nuts or what (heh heh said with respect and affection)? Rodriquez, at this point anyway, is the one with the most body parts in the wringer. He has lawyered up big time; Bob Bennett no less. Now, I don’t know what Bob will do; but if Rodriquez were my client, he wouldn’t be doing any interviews, under oath or otherwise, without every ounce of immunity I could humanly accumulate for him and even then, only after direct order of a court and interlocutory appeal therefrom.

    Irrespective of whether evidence gained by torture was admitted under Mukasey (although I’ll bet it was), I think it was pretty clear, and Mukasey should be considered to have been aware of, that these detainees were being subjected to torture and illegal detention during the time of these cases. As to the DOJ, it doesn’t matter that many of the critical people have left (some are still around we might note), the actions of those who left WERE the actions of the DOJ and are still attributable to them. The DOJ has the appearance of direct conflict on the issue of torture.

  4. . . .Are you nuts or what (heh heh said with respect and affection)? Rodriquez, at this point anyway, is the one with the most body parts in the wringer. He has lawyered up big time; Bob Bennett no less. Now, I don’t know what Bob will do; but if Rodriquez were my client, he wouldn’t be doing any interviews, under oath or otherwise, without every ounce of immunity I could humanly accumulate for him and even then, only after direct order of a court and interlocutory appeal therefrom. . .

    hey bmaz — again, i’ve emphasized the part
    of yours, where i think our views depart
    from one another.

    i think he’ll sing — under oath, and
    with immunity — and soon. as you point
    out, he has, essentially, life in prison to lose.

    i knew of bennett’s retention — but let’s remember
    that what everyone says rodriquez did, constituted
    multiple felonies. i guess you think he wouldn’t be
    immediately indicted, were he to decide not to
    cooperate. mukasey strikes me as the kind who
    will act quickly and decively to have him wearing
    orange, especially if he doesn’t roll-over. there
    is more than enough sworn testimony to win a life-
    sentence conviction against him, right now.

    so i think bennett will have to
    deal — a smallish plea, perhaps
    failure to preserve records, for immunity.

    yep — you are right:
    bennett will get him immunity,
    but then he’ll sing.
    loud and long, and
    indeed quickly, i suspect.

    again, we’ll see.
    so we’re clear, i meant no disrespect.

    p e a c e

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