TPMmuckraker reports the ongoing struggle between the U.S. Department of Justice and Congress. New Attorney General Michael Mukasey is defending the Justice Dept's. Office of Legal Council, even if it's opinions breach actual law.
The Justice Department will not investigate whether CIA agents engaged in torture by waterboarding detainees, Attorney General Michael Mukasey said earlier. Ditto goes for the administration's warrantless wiretapping program, Mukasey added later, when asked by Rep. Jerrold Nadler (D-NY) whether he would appoint a special counsel to investigate. The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA. Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged). Mukasey also went back to correct his statement during last week's hearing that he "didn't know" if the President had ordered the warrantless wiretapping outside the law. Silly me, he said, of course it was legal -- it was authorized by the DoJ.Now you know why Jack Goldsmith, the former chief of the DoJ's Office of Legal Counsel, said that OLC has the power to issue "free get-out-of jail cards," or "advance pardons" with its opinions.
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