Mukasey's Paradox

[Darryl G. Thomas]

This is pretty funny, at least to me:

Mukasey's Paradox
When you think about it, his manipulations are a beautiful, twisted thing.
By Jonathan Turley

March 4, 2008

The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey's action.

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.



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.

However, this is only half of Mukasey's Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.

Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt -- even if the president's assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush's assertions of privilege in this case would be upheld.

When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey's Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act -- and that the president could not be charged criminally because lawyers told him he could do it.

Now some have pointed to other paradoxes in Mukasey's tenure. There is, for instance, the "paradox" that his confirmation was saved by Democrats -- who thereby allowed the president to avoid a confrontation on torture. There is the "paradox" of Mukasey insisting that courts should not investigate the Justice Department's failure to preserve the CIA torture tapes because the Justice Department should be allowed to investigate its own failure to previously investigate.

Yet these are not real paradoxes -- they're merely political ironies. A paradox is a statement that seems true but yields a contradiction or a dual truth. When reduced to its purest form, Mukasey's Paradox is that government officials cannot violate the law -- but that because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law.



Mukasey's Paradox will now join other paradoxes such as Zeno's Paradox. Indeed, members of Congress already use a variation of Zeno's Paradox to explain their lack of action on civil liberties, torture and Iraq. They seem to be always working toward "change" without actual change occurring. The answer is found in Zeno's Paradox: You will never reach Point B from Point A as you must always get halfway there, and half of the half, and half of that half, and so on.

Mukasey's Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. Yet there is always hope.

Consider that Mukasey took an oath under which he swore to uphold the laws of this country -- even if the violator is the president of the United States or his aides. That oath means that all laws must be upheld without exception. Except, according to his interpretation, that executive power is a form of constitutional law that creates exceptions to the enforcement of laws.

But there's something known as the Exception Paradox, which goes as follows: If there is an exception to every rule, then every rule must have at least one exception, including the rule that there must be an exception to every rule. Thus, perhaps this is a rule without exception, and the president cannot order criminal acts.

But that brings us back to Mukasey's Paradox. Even if there is no exception to the president ordering crimes, there is no crime because the president ordered it. Perfection.

Jonathan Turley is a professor of law at George Washington University.

[PHILLYQ]

Brilliant article- less than a year of these dolts left.

[patricia]

Great item.
It seems as though the aim of this Administration is to elevate the office of the President to that of a God.
The downside is that if the Democrats form the next Administration, all the powers that this one have granted by Royal pronouncement will remain for Presidents in the future.
It seems to me that in their zeal to insulate themselves from any sort of responisibility for the offences which may have been committed on their watch the Bush Administration, with little opposition, have created an office which is immune from any sort of oversight at all.
Did they not consider this when they granted the President what amounts to absolute power?
Stuff comes back to bite you eventually and I think that this will, if they succeed in validating total power to the President, whoever they are in the future.
The chances of the succeeding Presidents physically dismantling powers granted them, even if they don't use them are unlikely.
Who's to say what will be considered emergency conditions under which these extraordinary powers will be used?

[Gary Sisco]

Most of the powers are considered permanent, now.

No pol will ever take them down. Historically, only the people have done that.

[Dr Dave]

And the People still can, at the ballot box. Even at the fixed ballot box: They can't rig everything, friends, the country is too big and too diverse and too complicated at street level. If we all really get behind it--and I don't mean the happytalk solutions that any of the candidates are putting out--we can force our government back onto the straight and narrow. Politicians wake up every morning and the first thing they do is check to see which way the wind is blowing. We can make it blow, but we have to put all the little shit aside for a while. Some not so little. To me, Job One is getting lawmakers to obey the law. It's a start, you know? Job Two is to blunt the claws of the super-rich, and take away the laws that favor them. Jobs Three through 10,000 we can debate: I won't enumerate the issues and causes.

And anyway, take a deep fuckin' breath. John "a thousand years in Iraq" McCain is not going to be elected president.

[patricia]

Originally Posted by Dr Dave

And anyway, take a deep fuckin' breath. John "a thousand years in Iraq" McCain is not going to be elected president.

And if you can make that happen [McCain not being President] there are at least a thousand people who will give you a thousand dollars....................each and a kiss on the lips.

[Dr Dave]

Originally Posted by patricia

And if you can make that happen [McCain not being President] there are at least a thousand people who will give you a thousand dollars....................each and a kiss on the lips.

I can't make it happen. But it will happen. Which is why I don't care how long the Dem primaries go on. Either one of them will beat McCain. I'd rather see Obama, because I'm a romantic, but I'll be fine with Senator Clinton as well. Look at it this way: Given the performance of the incumbent, the bar has been set really low. They may both be in thrall to the monied interests, but they at least believe in a workable government, and Obama knows for sure and Clinton will quickly realize that there is no percentage--none--in staying in Iraq. Forget the doomsayers--the sooner we're out, the better for all concerned, including us and the Iraqis.

[Scott Dolan]

Originally Posted by Dr Dave

And anyway, take a deep fuckin' breath. John "a thousand years in Iraq" McCain is not going to be elected president.

This from the person who was anointing Jeb Bush only a few short years ago?



BTW, particia, I have to confess that I considered kissing Finch on the lips when I met him a couple of years ago. But his old lady is a rather scrappy thing, so I decided it was in my best interest, physically, to show as much restraint as possible.

I still regret that decision to this day.

Besides, I think I could take her...

Maybe...

[Scott Dolan]

Originally Posted by Finch

Either one of them will beat McCain.

I could not disagree more.

Clinton will turn out the Republican vote in numbers you could not imagine. And McCain would already have the independent vote locked down tight.

[patricia]

Originally Posted by Scott Dolan

This from the person who was anointing Jeb Bush only a few short years ago?



BTW, particia, I have to confess that I considered kissing Finch on the lips when I met him a couple of years ago. But his old lady is a rather scrappy thing, so I decided it was in my best interest, physically, to show as much restraint as possible.

I still regret that decision to this day.

Besides, I think I could take her...

Maybe...

First of all, I'd pay a dollar to see that bout.

I don't remember Dr Dave verbally cozying up to taller and, some say smarter brother Jeb.
When was that and if it's true, how can I smack him upside the head?

Although I agree that either Ms. Clinton or Barack Obama would feel pressured to get the hell out of Iraq, the visceral hatred some feel for Clinton, I think, would shut down any chance of Independants voting for her.
It seems to me that Republicans would rather be pecked to death by a herd of angry emus than vote for Hillary Clinton where they are more likely to vote for Obama.
He doesn't have the baggage that Clinton does.
There are many Republicans, I think, who are really angry that the Iraq war grinds on with no end in sight.
But, I think if Hillary Clinton is the candidate, they will bite the bullet and stay with their own, rather than cross over to Hillary.
I say this only because I noticed when I lived in CA that people really identify with their political affiliation, much more than they do here.
"I'm a Republican [or Democrat]" is worn as a badge of honour.
Or they pride themselves on their independant stance.
Having said that, most of the independants I knew interpreted that as going with the winner rather than being truly independant thinkers.
I may be wrong in seeing them that way, but local issues seemed to be what made them decide who to vote for.
They leaned toward candidates who told them that they would do something about a local issue, if they were elected and their party formed the government. National, or international issues seemed to play very little with them.
I noticed in the last few weeks that Barack Obama has managed to create an aura around him that attracts not just Democrats, but Independants and even some Republicans disillusioned by the stubborn insistance that Iraq is winnable.
It's a little disconcerting that fear of the unknown, as illustrated in the ad tht the Clinton campaign aired just a couple of days ago galvanized so many, through fear, to support her.
What exactly are these people afraid will happen that Clinton will field better than Obama?

[Scott Dolan]

Originally Posted by particia

I don't remember Dr Dave verbally cozying up to taller and, some say smarter brother Jeb.
When was that and if it's true, how can I smack him upside the head?

Oh no, my dear (am I allowed to say that without being called "sexist"?). He wasn't "cozying up". It was strictly paranoid fantasy on his part. I think I can find the thread.

Even I, still being squarely in the rightwing loonie camp at the time, told him there was absolutely NO way that would happen.


And trust me, if I were to go against his wife things wouldn't be pretty. I mentioned Bush's win in '04 when we were at lunch, and even though she was talking to Kelly at the time she looked me straight in the eyes and sternly said "let's NOT talk about that!!!"



*Mommy*




It was never brought up again!

[patricia]

Originally Posted by Scott Dolan

Oh no, my dear (am I allowed to say that without being called "sexist"?). He wasn't "cozying up". It was strictly paranoid fantasy on his part. I think I can find the thread.

Even I, still being squarely in the rightwing loonie camp at the time, told him there was absolutely NO way that would happen.


And trust me, if I were to go against his wife things wouldn't be pretty. I mentioned Bush's win in '04 when we were at lunch, and even though she was talking to Kelly at the time she looked me straight in the eyes and sternly said "let's NOT talk about that!!!"



*Mommy*




It was never brought up again!

You're smarter than you look.

[Scott Dolan]

I know how to save myself from permanent disfigurement.

[Gary Sisco]

Originally Posted by Dr Dave

And the People still can, at the ballot box. Even at the fixed ballot box: They can't rig everything, friends, the country is too big and too diverse and too complicated at street level. If we all really get behind it--and I don't mean the happytalk solutions that any of the candidates are putting out--we can force our government back onto the straight and narrow. Politicians wake up every morning and the first thing they do is check to see which way the wind is blowing. We can make it blow, but we have to put all the little shit aside for a while. Some not so little. To me, Job One is getting lawmakers to obey the law. It's a start, you know? Job Two is to blunt the claws of the super-rich, and take away the laws that favor them. Jobs Three through 10,000 we can debate: I won't enumerate the issues and causes.

And anyway, take a deep fuckin' breath. John "a thousand years in Iraq" McCain is not going to be elected president.

It'll take more than a ballot box to remove institutionalized power. The powers have been granted to the office of the presidency, not to the person. Partisans always forget about that part. Ask them what they think about the prospect of Ms Clinton having the same powers Bush has assumed. I used to try to make the same arguments in Burlington when the Progs were steadily giving the office of mayor more power over the years, as if their man Bernie Sanders was going to be mayor for all time. Not.

[jesus marion joseph]

Originally Posted by Scott Dolan

I mentioned Bush's win in '04 when we were at lunch, and even though she was talking to Kelly at the time she looked me straight in the eyes and sternly said "let's NOT talk about that!!!"



*Mommy*




It was never brought up again!

Smart decision.

[Monte Smith]

Originally Posted by Scott Dolan

"let's NOT talk about that!!!"

Dude, that's when you get up on the table and say, "You're right. Let's dance about it."

[Scott Dolan]

Originally Posted by jesus marion joseph

Smart decision.

You ain't just shittin' dixie, my friend. And of course you know full well what I'm talking about.

[Dr Dave]

Meanwhile, the Attorney General of the United States, speaking at a political meeting in San Francisco, lets slip that the Bush Administration knew about a phone call from Afghanistan to the United States, shortly before 9/11. There is so much that is false in Mukasy's utterances, it is hard to know where to begin to discuss this. But you might take a look at this as a place to begin.

[Gary Sisco]

What difference would it make if you can't understand the language?

The government notoriously has just about no one who can speak Arabic, never mind the more than 13 languages and dialects used in Afghanistan.

[Darryl G. Thomas]

"It's unacceptable for Hamilton to refuse to comment on Mukasey's claims. The whole purpose of the 9/11 Commission was to ensure that there was full-scale investigation and disclosure of all facts relevant to the 9/11 attacks, including the Government's actions and inactions in preventing that attack from occurring."

- Glenn Greenwald

Greenwald should have written "The whole STATED purpose..."

The public demanded an explanation (just like the Warren Commission) and they were given one Me being the cynic that I am thinks that maybe some of the more politically explosive findings may have been swept under the rug.

[patricia]

Originally Posted by Darryl G. Thomas;737994[/quote

Me being the cynic that I am thinks that maybe some of the more politically explosive findings may have been swept under the rug.

Surely not.
Of course those responsible for their slap-dash handling of vital intelligence, which resulted in terrorists attacking New York and Washington D.C. have been exposed to public ridicule, at least fired and possibly even imprisoned.
Right??

[Gary Sisco]

Well, not that I think the intelligence services are very sharp -- they're not -- but it's much easier to see what is "vital" in hindsight than foresight. Much easier. This of course would be even more the case since almost no one in American intelligence agencies can speak the languages of the terrorists they hunt.

Also ignoring that the Sept 11 team that carried out the operation did all of its meeting face to face in obscure motel rooms. (Obviating all of the communications monitoring, incidentally -- and again, the language issue. 14 of them, at least, between Arabic and the various Afghanistan languages. Plus Persian.)

[patricia]

Originally Posted by Gary Sisco

Well, not that I think the intelligence services are very sharp -- they're not -- but it's much easier to see what is "vital" in hindsight than foresight. Much easier. This of course would be even more the case since almost no one in American intelligence agencies can speak the languages of the terrorists they hunt.

Also ignoring that the Sept 11 team that carried out the operation did all of its meeting face to face in obscure motel rooms. (Obviating all of the communications monitoring, incidentally -- and again, the language issue. 14 of them, at least, between Arabic and the various Afghanistan languages. Plus Persian.)

I still remember the news stories, Gary, about the flightschool owners who called the authorities to report that they had Middle Eastern students who were learning how to operate a plane, but didn't care if they could land one.
It was reported on the news as kind of an amusing human-interest story and nothing was done beyond chuckling about it. There was no alarm. As far as I know, no followup was done.

There was a sense of invincibility and I was shocked by that. Nobody seemed alarmed. Of course, Sept 11 hadn't happened yet. The stories were early in 2001, as I remember.

In retrospect, considering that departments in the government existed to monitor threats, one can't help but wonder exactly what it was that they did all day?
Did they think they were just window-dressing, because who would be so rash as to dare to attack the mighty U.S.A.?
The arrogance, or perhaps complacency that was and still is exhibited is astounding to me.
Instead of wondering what the existing departments in charge of security were doing, the reaction after 9/11 was to establish new departments to do what the old ones were supposed to be doing all along.
All the new beurocracy in the world can't fight a determined civilian resistance as what has risen up in Iraq. After all, one day the foreign military will go home and the situation that has been unloosed in Iraq will be dealt with by Iraqis, one way or another.

[Gary Sisco]

Pat, I'm sorry but if someone called the FBI and said that there is still no logical leap to be made out of context from that information to thinking, never mind predicting, that an operation to fly two jets into the WTC and another into the Pentagon and still another (the one that crashed).

The nature of terrorism requires doing that which isn't expected, when it isn't expected, and where it isn't expected.

[groover]

Those Middle Eastern students were Saudis, right? Anytime an intelligence agent suggests investigating any Saudis, Prince Bandar makes a phone call and the agent gets re-assigned, or at least that's how it used to work. It's not the arrogance of the U.S., Pat, it's the pernicious and pervasive power of Saudi oil money that prevented anyone from connecting the dots. Before 9/11, no background checks were done on Saudi visa requests. I hope that's changed, but I'm not sure. Money is the root of all evil, and the Saudis have the most of it to burn. I'm sure they'll even try to buy Obama if he wins, if they haven't already.

[Uli]

It still boggles my mind that they could fly this plane into the pentagon. there's gotta be an early wanrning system that protects the hq.

[groover]

Well, the reason it happened, Uli, was to re-direct the anger of the Arab street away from the Saudi royal family, who are in cahoots with the Bush royal family. If there was any conspiratorial cooperation on the part of our government, it was due to those factors. There wasn't necessarily any active cooperation, just turning a blind eye as they'd been conditioned to.

[Gary Sisco]

Originally Posted by Uli

It still boggles my mind that they could fly this plane into the pentagon. there's gotta be an early wanrning system that protects the hq.

There is but there wasn't much warning and like everyone else in the country they were likely glued to the tv, trying to figure out what's what.

An aircraft covers a lot of ground, fast, and the only thing they could have done if they'd scrambled in time was shoot down an airplane full of civilians. Working out that decision yes or no, wouldn't be done at lightning speed, either.

Seconds matter, at those speeds.

There are places clearly marked on pilots' charts to avoid those airspaces. The White House is covered by one, obviously, and Congress. If I were giving the order to scramble based on the information they had in those minutes, I'd have ordered them to the WH and Congressional airspace, rather than the Pentagon.

The attacks happened very fast, however, and they achieved complete strategic and tactical surprise, something every combat commander dreams about.

I give them the benefit of the doubt. People can't be on alert all the time because they slack off eventually, regardless of the circumstances -- even combat units in combat zones. No one had a reason to expect an attack that day, much less a reason to expect the chosen weapon.

It's too easy to expect of others what most of us are incapable of, seems like to me.

You're the man in charge. You have minutes at most and no clear idea of what's happening. They did manage to ground or reroute all aircraft, in a remarkably short time, though they made a huge tactical error, security-wise, in my book, by announcing repeatedly that all aircraft over the US had been grounded except the president's airplane. That wasn't very bright. One plane. One president. They still hadn't had time to really know what was happening. In any case, it would be known, thanks to that. The one blip on the radar is Air Force One.

[Gary Sisco]

Actually, the thing that set Bin Laden off and led to the formation of Al Q is the Saudi state. This is well known. His biggest gripe is with the Saudis for allowing infidel armed forces to be based in Islam's most holy land. *Some* Saudis were involved, obviously, but it's just not the case that the Saudi state itself was. It and Al Q are blood enemies. They aren't allies in any sense.

[jesus marion joseph]

Originally Posted by Uli

It still boggles my mind that they could fly this plane into the pentagon. there's gotta be an early wanrning system that protects the hq.

Yeah, I believe that plane took off from Reagan Int'l. Airport, which is in the same vicinity of the Pentagon, so the plane would have gotten there very quickly, assuming it was in the DC vicinity when it was taken over by the hijackers.