Stop Torture

The Harvard Anti-Torture Coalition

Mukasey Rejects Investigation Into CIA Torture; Invokes Nuremberg Defense

Posted by stoptorture on February 7th, 2008

Water(boarding)gate continues…

Attorney General Michael Mukasey testified before the House Judiciary Committee (HJC) this morning.

According to the live blog of the hearing at EmptyWheel, Chairman John Conyers asked Mukasey whether he was ready to start an investigation into the CIA’s admitted use of waterboarding in the past. Mukasey replied no. Below is a partial paraphrase (probably not directly quoted) of Mukasey’s response as transcribed by EmptyWheel:

John Conyers: Any additional comments about waterboarding now that Hayden confirmed it?

Michael Mukasey: Do you have a particular question?

John Conyers: Are you ready to start a criminal investigation?

Michael Mukasey: That’s a direct question. No, I am not. Whatever was done as part of the CIA program, was part of DOJ opinion, through OLC, permissible under law as it existed then. For me to use occasion of disclosure that that was once an authorized part of the CIA program would be for me to tell that they will now be subject to criminal investigation. That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.

Ladies and gentlemen, behold the Nuremberg defense (“Don’t punish me for my atrocity. I was only following orders.”). Mukasey has already been accused of invoking the Nuremberg defense on behalf of the Bush torturers by Senator Sheldon Whitehouse.

The HJC hearing continues this afternoon live at

The stream linked to above is provided “By Direction of the Chairman” John Conyers, according to the HJC website. Curiously, we currently could not find a webcast of the hearing on C-SPAN, despite the obvious importance and interest in the meeting.


  • The Associated Press reports that CIA Chief Hayden says of waterboarding that “it is not certain that that technique would be considered to be lawful under current statute.”
  • The Nuremberg defense cannot help those who tortured or authorized torture. Reliance on an unreasonable legal opinion should not be sufficient to insulate an individual who committed a crime. Furthermore, the person who authored the legal opinion may also be criminally liable. Also, according to the Miami Herald, the Department of Justice (DOJ) itself is currently prosecuting a lawyer for having issued supposedly erroneous legal opinions that supposedly to further a criminal conspiracy.  Regardless of the merits of this case, it shows that the DOJ believes it is legitimate to prosecute lawyers for having issued legal opinions that it believes formed part of criminal activity.  Why then won’t the DOJ prosecute John Yoo, Steven Bradbury, or Jay Bybee?  Just because they were/are DOJ lawyers?  Are DOJ lawyers asserting that they can enforce the law but are themselves above the law?
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27 Responses to “Mukasey Rejects Investigation Into CIA Torture; Invokes Nuremberg Defense”

  1. Raphael Says:

    There is a webstream of that hearing, though it is of very low quality.

  2. Ban Torture › Mukasey will not investigate confirmed use of waterboarding Says:

    […] Below is a transcript of Mukasey’s response as to whether he would investigate. Thanks to EmptyWheel and The Harvard Anti-Torture Coalition: […]

  3. Brendan Calling » Blog Archive » Arlen Specter E-Mails Me; I Call Arlen Specter Says:

    […] confirmation hearings. But as I recall Mr. Mukasey refused to define torture, and even today refuses to even investigate allegations of torture. And Senator Specter voted to confirm him ANYWAY. So could you clarify for me how this is […]

  4. Phone Detective Says:

    The webstream is incomprehensible. Does anyone have a higher quality link?

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