The Mukasey Paradox
From a column by Jonathan Turley in The Los Angeles Times:
In his [Atty. Gen. Michael B. Mukasey's] 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.
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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.
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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.
This is fleshed out in much greater detail with examples. Read it all here.
And if you’d like to do some more extensive reading about how the Bush Administration has used the claim of executive privilege to evade laws we used to think were pretty clear and strongly ingrained in American society, check out Scott Horton’s essay in the March 2008 issue of Harper’s Magazine titled “VOTE MACHINE – How Republicans hacked the Justice Department.”
The American system of democracy has many defenses, and the Bush Administration overcame each of them in turn. It was not enough simply to control the bureaucracy. High officials as well had to understand that their function was not to enforce the law but rather to express the will of the president.
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But the Bush Justice Department demonstrated its power in supporting a partisan electoral agenda and in outfitting the executive with extraordinary and extra-constitutional powers. Is it realistic to think that any new occupant of the White House would surrender those powers? The American historical experience on this point is clear: once a power or prerogative is successfully asserted by a president, his successors have generally guarded that power carefully, whether they make actual use of it or not.
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Our Constitution provides a mechanism for countering transformational excess, but the people’s representatives thus far appear to have decided that the impolite process of impeachment is only for presidents who have affairs. Given this failure of will, we must be prepared to accept a changed system in which the will of the people is subsumed by good manners and fearful politics. As long as this new democracy prevails, little will matter beyond the will of the president.
So vote for change this coming November and then demand it of your newly elected officials.
