A doctrine of legal preemption

Attorney General Michael Mukasey, has provided perhaps the most naked example of this administration's contempt for both Congress and the judicial branch

Here he is, testifying in front of Rep. Bill Delahunt (D) of Massachusetts:

(via Emptywheel)

Rep. Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

Michael Mukasey: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.


MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let's concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you're talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn't. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration. I can't cite you a case.

Think of the implications of what Atty. Gen. Mukasey is saying (without legal precedent).

I mean - by his line of reasoning the Attorney General (or presumably anyone at DOJ qualified to offer an opinion on behalf of the department) can give you legal immunity for any action, provided you first ask for one.

Screw waterboarding. This line of reasoning carries the day, the DOJ and anyone in their good graces is above the law.

You wonder why a statement like that isn't plastered across newspapers or running on an endless loop on all the cable channels.