In an exchange between Attorney General Mukasey and Sheldon Whitehouse during today's Justice Department Oversight hearing, Mukasey, without admitting that it has ever happened, had an interesting defense of torture:
WHITEHOUSE: You are the top law enforcement officer of the United States and prosecutors do look back. Prosecutors do investigate things that have happened in the past. They do dredge up the past in order to do justice...Now the president has said that we will investigate, prosecute all acts of torture and you've just said today, "if someone is guilty of violating the laws of the United States," they get prosecuted...There is jurisdiction over the activity prohibited if the alleged offender is a national of the United States and a person who conspires to commit an offense under this section is subject to the same penalties other than the penalty of death..." So, we have a statute on point, you are, I believe, the sole prosecuting authority for that statute, correct?
MUKASEY: I am as the top of the Department of Justice, which is the sole prosecuting authority. [...]
When it comes to past conduct, one of the many questions involved in past conduct in addition to what was done, is, what authorizations were given, what authorizations were reasonably relied on. My current evaluation of the statute, if there is one, has only tangentially to do with that because if it has directly to do with that, then the message is, your authorization, you who did whatever you did, your authorization is good only for so long as the tenure of the person who gave it and maybe not even for that long...
WHITEHOUSE: The message you send otherwise is that 'I was only following orders' is a fine response.
MUKASEY: It's not a fine response. It was a response at Nuremberg that was found unlawful, we both know. Ummm...
WHITEHOUSE: And yet it's the one that you're crediting right now. 'I had authorization and therefore I'm immune from prosecution.'" Isn't that where that analysis leads?
MUKASEY: No, it's, I had authorization and let's take a look at the authorization. If the circumstances under which it was given and what was done have a whole wide range of variables that I don't have before me.
WHITEHOUSE: Has that been done? Has there been a thorough, independent analysis under your administration of whether or not any national of the United States is potentially in violation of Section 23-40A as the result of...
MUKASEY: I don't, I don't start investigations out of curiosity. I start investigations out of some indication that somebody might have had an improper authorization. I have no such indication now. [...]
WHITEHOUSE: I don't see how that resolves the Nuremberg defense problem. If the reason that you're giving us for investigating the destruction of the tapes, but not investigating the underlying interrogation, is that it appears that the interrogators were following orders and it appears that the destroyers were not, isn't that the Nuremberg defense?
MUKASEY: No, because you're assuming what was on the tapes, you're assuming that the interrogation was unlawful...
WHITEHOUSE: I'm not assuming any such thing, anymore than you'd be assuming that the destruction was unlawful. What I'm suggesting is that you should investigate it and there should be at least somebody who at least takes a look at this in a principled, thoughtful way, and if the answer that comes back is, no, there was not a crime and here's why, then we can lay the question to rest. But if you're telling me that this hasn't even been investigated although the destruction of the tapes is being investigated, it strikes me that there is a split standard there and I'm trying to understand why.
What an embarrassing, infuriating disgrace. The Attorney General of the United States reduced to a Nuremberg Defense