…And Out Come The Criminal Statutes

Sen. Claire McCaskill (D-Mo.), a former county prosecutor in Missouri, asked Shiffrin about a particularly interesting legal theory. In memoranda between Guantanamo Bay and the Office of the Secretary of Defense, there’s discussion of “immunity in advance” for torturing people. In other words, the administration was declaring that it could order the law broken and issue prior guarantees of immunity from prosecution. Hey, it happens in Venezuela all the time.

McCaskill asked Shiffrin if people could be guilty of crimes for ordering such things. “They could be, Senator,” he replied. McCaskill asked what Shiffrin did when he encountered mentions of “immunity in advance.” His repeated response? “I don’t recall. … I don’t have a recollection of the contemporary discussion.”

“You’re probably a really good lawyer,” McCaskill glared.

Did any order of prior immunity come from Dick Cheney, David Addington, or Alberto Gonzales? McCaskill: “There are still people involved in the periphery of this who are involved, today, in government.” Alas, Shiffrin doesn’t recall. “The Department of Defense is a very compartmentalized place,” he said.