From Talking Points Memo:
By David Kurtz
Attorney General Michael Mukasey is back on the Hill today, testifying to the House Judiciary Committee. Paul Kiel is covering it at TPMmuckraker.
So far, he's dropped two big bombshells. DOJ will not be investigating:
(1) whether the waterboarding, now admitted to by the White House, was a crime; or
(2) whether the Administration's warrantless wiretapping was illegal.
His rationale? Both programs had been signed off on in advance as legal by the Justice Department.
Cynics may argue that those aren't bombshells at all, that the Bush Administration would never investigate itself in these matters. Perhaps so. But this is a case where cynicism is itself dangerous.
We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not.
It is as brazen a defense of the unitary executive as anything put forward by the Administration in the last seven years, and it comes from an attorney general who was supposed to be not just a more professional, but a more moderate, version of Alberto Gonzales (Thanks to Democrats like Dianne Feinstein and Chuck Schumer for caving on the Mukasey nomination.).
President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.
Late Update: TPM Reader RF:David Kurtz's "Mark This Day" blurb misses the most important point -- it's not just that the Attorney General's position is that a DOJ Order makes the subject activity legal but that, as Nadler brought out, there is now no recourse to a judicial test, either criminal (through refusal to prosecute) or civil (through the state secrets privilege based solely on a DOJ affidavit). The DOJ is entitled to take whatever position it wants, however self-serving and unitary, but now there is no avenue for judicial review and so that is the end of the story. That is the important point here.