From the Washington Post:
"The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA's use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a "good thing" that the CIA was able to learn what it did from those subjected to the practice. (...)
Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.
"That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice," he said."
Personally, I can't see why the fact that someone in the Justice Department signed off on something means that they cannot now investigate. And I can see a lot of reasons for not saying that, like the fact that that would mean, in practice, that if you had people in the DoJ who were willing to sign off on whatever the President wanted, even if it was patently illegal, no one could ever be prosecuted for following those orders. Just get someone in DoJ to make some idiotic ruling, saying something patently false, and voila! no legal jeopardy! See how easy?
This means that if the Justice Department were sufficiently corrupt or compliant -- and does anyone want to argue that it wasn't, under Alberto Gonzales? -- the administration could do whatever it wanted without worrying its little head about the law. David Kurtz at TPM:
"We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not. (...)
President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff."
He adds a note from one of his readers:
"It's not just that the Attorney General's position is that a DOJ Order makes the subject activity legal but that, as Nadler brought out, there is now no recourse to a judicial test, either criminal (through refusal to prosecute) or civil (through the state secrets privilege based solely on a DOJ affidavit). The DOJ is entitled to take whatever position it wants, however self-serving and unitary, but now there is no avenue for judicial review and so that is the end of the story."
Ari at The Edge of the American West puts it more concisely:
"We have a tyrant in the White House."
That pretty much sums it up. And no, I don't think I'm overreacting. When the Executive asserts the right to disregard the will of Congress without any possibility of judicial review, that is tyranny.
And don't say that our poor government officials have no choice but to rely on the DoJ's rulings about what is legal and what is not. We don't accept this excuse from anyone else. When mafia hit men assure us that according to their lawyers, members of other crime families are not persons within the meaning of the homicide statute, or corporate CEOs tell us that their lawyers advised them that cyanide does not count as a toxic substance for the purposes of the Clean Water Act, we do not say: oh, well, that's OK; just don't do it again. We say: too bad. You should have hired better lawyers. Have fun in jail.
While I don't think that whether or not waterboarding is legal is a tough call, I do think that it must be difficult to be a CIA agent working without good legal guidance. But that's not a good reason to set a precedent according to which any administration can do whatever it feels like if it can get someone in the DoJ to sign off. The administration should have hired good, honest lawyers, not people who would tell them whatever they wanted to hear. There are a lot of reasons for hiring competent, honest lawyers, and protecting government agents who genuinely want to stay within the bounds of the law is one of them. The Bush administration did not do this, and because it didn't, it let its own people down and betrayed their trust.
In some cases (not including waterboarding), non-lawyers in the government might have done things that they believed to be legal because they trusted the DoJ. It might seem unfair to hold people who are not lawyers legally liable for this administration's failures. However, as I said above, we don't accept this excuse from other people; and government agents are the last people we should exempt from the rule of law. Adding CIA interrogators to the already long list of people who might pay the price for the administration's cavalier attitude towards the law is better than giving up on the rule of law and our constitutional system of government.