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The State Department explores new frontiers of lawlessness.

Two days ago, the AP broke the story that the State Department had offered immunity to Blackwater guards for their statements following the September 16th Nisour Square shootings that left 17 Iraqi civilians dead.

The State Department didn't have an immediate reply to the story and seemed to be caught off guard. A "senior State Department official" told ABC that "If anyone gave such immunity it was done so without consulting senior leadership at State." Immunity? Who authorized such a thing?

But apparently such a move wasn't so unprecedented. In fact, it was "routine," reports the AP:

Limited immunity has been routinely offered to private security contractors involved in shootings in Iraq, State Department officials said Tuesday, denying such actions jeopardized criminal prosecution of Blackwater USA guards accused of killing 17 Iraqi civilians....

At the State Department, [State Department spokesman Sean] McCormack said "these kinds of issues are not new." He said Justice Department officials "can take steps to work around" any limited immunity agreements. "They provide limited protections that would not preclude a successful criminal prosecution," he said.

A second senior State Department official, speaking on condition of anonymity because of the ongoing inquiry, said the agency has for years required its security contractors to give written statements within hours of any so-called "use of deadly force" in Iraq.

Waivers granting a security worker limited immunity — by barring those statements in a criminal case against the worker — are a "routine part" of the investigations by the Bureau of Diplomatic Security, the official said.


So now the full scope of the lawlessness which State Department contractors in Iraq enjoy becomes clear. Not only do those contractors operate in a legal gray zone apparently beyond the reach of current law, but the State Department routinely offered immunity to guards involved in incidents in order to get their version of the story, making the prospect of prosecution all the more improbable.

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After Mukasey's response, Sen. Joe Biden (D-DE), also on the Senate Judiciary Committee, is now a nay.

Just out from Sen. Dick Durbin (D-IL), who has a seat on the Senate Judiciary Committee:

"We asked Judge Mukasey a simple and straightforward question: is waterboarding illegal?"



"While this question has been answered clearly by many others -- including John McCain, the Judge Advocates General, and John Warner -- Judge Mukasey spent four pages responding and still didn’t provide an answer."



"Why is this important? Because the way we treat our prisoners determines how captured Americans are treated. It matters because Americans expect a nominee to the top law enforcement position in the country to give a straight answer. It matters because doing the right thing and taking the moral high road are central to our nation's values."



"Judge Mukasey makes the point that in the law, precision matters. So do honesty and openesss. And on those counts, he falls far short.”


Durbin's statement itself falls short of saying unequivocally whether he will vote against Mukasey. He said earlier, however, that his vote depends on Mukasey calling waterboarding torture.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) on Mukasey's answer:

“Based on an initial review of his response to the letter, I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States. I await his response to other written questions and letters from Republican and Democratic Senators that were sent to him last week, and I will consult with Senator Specter and other Members of the Judiciary Committee before scheduling Committee consideration of this nomination.”


So we'll count that as "I'm still mulling it."

In his letter to Senate Democrats today, attorney general nominee Michael Mukasey walks a fine line. He calls waterboarding, as described by the Dems in a detailed letter last week, as "on a personal basis, repugnant to me." But he says that such a description depends on a hypothetical use of such a technique, and "in any legal opinion the actual facts and circumstances are critical." You can read Mukasey's letter here.

What follows in the letter is an extended treatment intended to give Democrats a sense of how he would approach the issue. Mukasey explains that he can't definitively say that waterboarding is torture because 1) he doesn't know whether it is in use, or whether a similar technique is in use, 2) he doesn't want any public statement of his on the issue to place any interrogators in legal jeopardy, and 3) "I would not want any statement of mine to provide our enemies with a window into the limits or contours of any interrogation program we may have in place and thereby assist them in training to resist the techniques we actually may use."

But all that said, Mukasey clearly aims to assure Dems that he's not in favor of waterboarding, either: "I emphasize in closing this answer that nothing set forth above, or in my testimony, should be read as an approval of the interrogation techniques presented to me at the hearing or in your letter, or any comparable technique." He continues:

As I testified, if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique.


So now we'll see if Democrats think that's good enough.

Move over Veco, the seafood industry needs some room in the federal corruption investigation of Sen. Ted Stevens (R-AK).

Until now, only Stevens' son Ben Stevens, a former state Senate President, had been publicly ensnared in the fishing probe targeting earmarks that went to companies simultaneously paying the younger Stevens consulting fees. But this evening, the AP reports the seafood probe includes Ted Stevens, the longest-serving Republican in the U.S. Senate.

Investigators want to know if Stevens deliberately ushered $180 million in earmarks and wrote legislation that would lead to consulting fees and stock options for his son.

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As expected, Michael Mukasey did not change his position on the waterboarding question. From the AP:

President Bush's nominee for attorney general told the Senate Judiciary Committee on Tuesday that he does not know whether waterboarding is illegal. He pledged to study the matter and to reverse any Justice Department finding that endorses a practice that violates the law or the Constitution.

"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," Michael Mukasey wrote to the committee's 10 Democrats.


We'll have Mukasey's full answer, as well as the reaction from Democrats and Republicans who've said that they're vote on Mukasey depends on this answer, as they become available.

Update: Time had some background of the negotiations to produce this evidently unsatisfactory statement in a story today. You won't be shocked to learn that Dick Cheney played a typically inflexible role in the back and forth:

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Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) pronounced himself pleased that the administration had handed over four "previously undisclosed documents" relating to the administration's interrogation policies. As he wrote to White House counsel Fred Fielding in a letter: "The release of these documents restarts the incremental process of providing necessary information to Congress and to the American people about the Administration’s legal justifications and policies with regard to torture and interrogation." After months of stonewalling, it was a new day!

Well, not so much. Apparently three of the four documents, called "previously undisclosed," in the committee's press release at the time, were already in the public domain.

For instance, Leahy could have gone to the ACLU's website to read the February 4, 2005 letter from Acting Assistant Attorney General Daniel Levin that the administration handed over. And the December 30, 2004, memo (pdf) from Levin that famously redefined torture? The Justice Department released that publicly itself at the time. The third document Leahy cites is private testimony (pdf) by a former Justice Department official back in July, 2004, to the House intelligence committee. That, too, is in the public record.

And the fourth? It remains classified, although it's general contents have already been widely reported.

Keep in mind that the administration has still not turned over any of the memos during Alberto Gonzales' tenure as attorney general, such as the ones reported by The New York Times earlier this month.

Leahy's statement is below.

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Since news broke yesterday that the State Department had offered immunity deals to the Blackwater guards involved in the September 16th Nisour Square shooting, which left seventeen Iraqis dead, inquiries from Democrats have mounted, and the State Department has evidently been scrambling to respond.

And it's evident what their response is: at least we didn't offer absolute, blanket immunity to the guards from prosecution. As part of the PR offensive, two "senior State officials" stressed just that point to CNN earlier today. But the AP, which broke the story, never reported any such thing.

The type of immunity offered the guards was "use" immunity, meaning that the guards were offered the ability to talk with the promise that their statements couldn't be used in a criminal prosecution. ABC got a hold of the statements today and confirms this.

So State Department spokesman Sean McCormack tried to look on the bright side in a press briefing:

"The kinds of, quote, 'immunity' that I've seen reported in the press would not preclude a successful criminal prosecution," he insisted.

"The Department of State cannot immunize an individual from federal criminal prosecution," he added.


There are a couple of problems with that, however.

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With presidential primary politics, things move faster. Now the number of senators who have unequivocally opposed Mukasey's nomination is four. Says Sen. Hillary Clinton (D-NY):

"We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law. His failure to do so leaves me no choice but to oppose his nomination."


A large number of senators have put off any definitive answer on Mukasey until he again answers whether waterboarding qualifies as torture.

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