In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers.Nothing has been more effective at rehabilitating the image of Richard Nixon than these overtly criminal bastards, has it?
Such a perfect paradox is no easy task. Most attempts fall apart because of some element of logical consistency. The closest example to Mukasey's Paradox is the Grandfather Paradox: If you go back in time and kill your grandfather before he meets your grandmother, you would not be conceived and therefore you could not go back to kill your grandfather. That one can play real tricks with your head.
Mukasey's Paradox appears designed to play tricks with Congress. Its origins date back to Mukasey's confirmation hearings, when he first denied knowing what waterboarding was and then (when it was defined for him) refused to recognize it as torture. In fact, it is not only a crime under U.S. law, it is a well-defined war crime under international law.
The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States -- an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey's confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
Tuesday, March 4, 2008
Attorney General Michael Mukasey has gone through the lookingglass and nothing makes sense any more.