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TechnoratiWhen you think about it, his manipulations are a beautiful, twisted thing.
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.
Copyright 2008 Los Angeles Times
18 Comments so far
Show AllSomeone's Irony Detector needs to be recharged.
I don't see this as an object of beauty, nor as Turley acknowledges, even a paradox. It's a base, reductive tautology, and therefore nonsense. I think it glorifies these government actors rather than recognizing them for what they are: members of a criminal syndicate who think and act exactly as that.
The fact is that the law itself is so degraded beyond common sense reason that it's useless to make these types of masturbatory exercises-- except that it will get you published in a major american newspaper.
Kernel: If only Mukasey were incompetent. That would make things easier for us.
elmysterio:
"You do realize the rest of the world is laughing at you Americans because you allow this sort of retardedness to go on."
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I'm not laughing at all. I would describe my feelings as dismayed, disappointed and incredulous, even horrified. But more than anything heartbroken.
Torture, war of aggression, crimes against humanity, these are charges levied against Bush, however these crimes could not be carried out and continued by him without the support and consent of congress. Voters of two Vermont towns have asked their police to arrest Bush on war crimes charges. While that is a practical impossibility, the members of congress who are complicit in those crimes might be easier to arrest. People in every jurisdiction, local, state, and international could ask their law enforcement agencies for arrest warrents for nearly all member of the US congress and starting with Nancy Pelosi for her outspoken refusal to even begin the process of impeachment. Pelosi, Schumer and Feinstein and the others should be on wanted posters in America, Germany, France, and other responsible nations for complicity in the death and dismemberment of hundreds of thousands of Iraqi people.
Mukasey is just the latest example of the kind of incompetant lackeys this administration has placed everywhere they could possibly get them. That is why we must get the people that forced this disaster on our country out this year or we may not ever be able to turn things around. There will be plenty of time to debate who may have the best strategy for the country later when we have replaced the criminals that set us on a course of destruction.
What happened to "obstruction of justice? The US being a land of laws...not land of laws for the little guy, but the guy sworn into office to uphold the Constitituion is exempt? I don't think so. Not only is the Bush admin guilty of breaking the law, but now, Mukasey is obstructing justice...
"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."
If Congress'constitutional "subpoena power" is undermined by this paradox bull$hit, then our country's leaders, regardless of party affiliation, will be immune from accountability to the people of this country.
If our Founding Fathers' intentions were to create a dictatorship in this country, they would have appointed a dictator. THEY DID NOT!
PREAMBLE TO THE U.S. CONSTITUTION: "We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and SECURE the blessings of LIBERTY to ourselves and our POSTERITY, do ordain and establish this CONSTITUTION for the UNITED STATES OF AMERICA."
PREAMBLE TO THE BILL OF RIGHTS: "The conventions of a number of States, having at the time of their adopting the Constitution, expressing a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, that further declaratory and RESTRICTIVE CLAUSES should be added: and as extending the ground of public confidence, in the Government, will best insure the beneficent ends of its institution."
This so-called paradox is a clear "abuse" of executive power. The "doctrine of the separation of powers" was adopted to preclude the exercise of arbitrary power!
Feinstein, Schumer, Spector et al. put their religious affiliation above their duty as senators. Whoever hit on the idea of nominating a Fascist Jew for AG should get the medal of freedom.
AIPAC involvement?
Mukasey-Jewish; Feinstein-Jewish; Schumer-Jewish
waterboarding is the answer!
If 19 men with boxcutters could cause such panic in the halls of congress and cause us to break all international laws,then the technique should serve us in getting to the bottom of just how deep the internal conspiricy to shred the constitution,defy all laws domestic and international and destroy our country which only is the sum of our constitution and the glue that holds us togeather as a nation.
Impeachment and the discovery of an honest politician are long overdue.
Pure and utter Bullshit. Refusing to prosecute for contempt in this case is an impeachable offense. When Nixon did it he was firing an AG who was going to prosecute - now the current AG under orders from the administration is refusing? Too bad Harriet Meirs and Josh Bolten are not journalists trying to protect their sources - then they would have been sitting in jail long ago. Impeach this whole criminal administration!!!
You do realize the rest of the world is laughing at you Americans because you allow this sort of retardedness to go on.
Mukassey's Paradox = Someone who was picked to replace a low-grade pinhead who has shown himself just as dense and double-talking as his predecessor. Except neither of them are dense or engaging in double talk. they just don't give a s__t and don't care who knows it.
Schumer and Feinstein certainly did not betray their paymasters. Check their bank accounts.
Sidepoint - Feinstein's husband is a biiiig defense contractor - it may explain her iexplicable and unconscionable votes in support of the administration.
Schumer and Feinstein betrayed us. Pure and simple. Throw the bums out. No paradox there.
kathyodat
"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."
"In fact, it (torture) is not only a crime under U.S. law, it is a well-defined war crime under international law."
Outside of the asylum we like to call America, you don't need a law professor to tell you this. Your average grade school student could follow the logic. And the senators that appointed Mukasey are mostly lawyers anyway aren't they? In most places around the globe, we would call "Mukasey's Paradox" dictatorship.