alternative hippopotamus

progressive cyberdadaism from our nation’s capital

February 7, 2008

Office of Loopholes and Concealment

by AltHippo @ 5:43 pm. Filed under Bush

The story goes that a bunch of crack right-wing legal theorists were sitting around during the Reagan administration trying to figure out how to avoid another Nixon crisis. One of the issues that drove them was that of executive power. How do you keep the Congressional and Judicial branches from undermining the authority of the president? That’s the problem they were trying to solve.

One of the things we know they came up with is the Unitary Executive theory. Another is the use of signing statements to act essentially as a line-item veto.

What had escaped many of us was a substantial loop-hole in the Office of Legal Counsel. Let’s say that President Bush wants to waterboard American citizens suspected of voting for the Democratic Party. He appoints someone to the OLC who believes that sort of method is legitimate, and has them draw up an opinion to that effect. He also classifies the memo so that no one can review the decision.

I know it sounds crazy. But it’s just crazy enough to work: (TPMmuckraker)

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was “insulated from criminal liability?”

Mukasey wanted to say it more carefully. “I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.”

But even if that opinion was “inaccurate,” Delahunt wondered, and that behavior really did violate the U.S. criminal code, you’re saying that someone who relied on it would effectively have “immunity from any culpability?”

“Justified reliance,” Mukasey answered, “could not be the subject of a prosecution.” Simple as that. “Immunity connotes culpability,” he added, so it wasn’t immunity, exactly, but the effect was the same.

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hip·po·pot·a·mus n. A notion, perhaps distinct from conventional wisdom, that needs to be verified by reality-based scrutiny.

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