Back in April, I reported on the Attorney General Guidelines issued by the Bush administration just as it was leaving office, in December. They gave the FBI unprecedented powers to investigate people without any reason to believe they’re engaged in wrongdoing. Then last Friday, in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union and Electronic Frontier Foundation, the Justice Department released a heavily redacted version of its Domestic Investigations and Operations Guide (DIOG), an internal policy document that explains how FBI agents would implement the Attorney General Guidelines.

As the ACLU noted earlier this week, the operations guide actually allows the FBI to violate the Attorney General Guidelines without approve from, or notice to, the Attorney General.

“It sets an extremely confusing and dangerous precedent to create an ambiguous set of guidelines for invasive surveillance of Americans and then grant the FBI the authority to violate those guidelines unilaterally,” said Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office, in a statement released Tuesday. “We remain concerned that the Mukasey Guidelines were written so broadly that they imposed essentially no restrictions at all on FBI investigations, and now we see the FBI has interpreted them in exactly the same way. Congress needs to create a statutory framework that limits the FBI’s authority to conduct investigations without reasonable suspicion of wrongdoing as soon as possible.”

The guidelines are raising particular concerns among Muslim civil rights groups who fear they allow FBI agents to sent informants into mosques to spy on their members. “The concern many feel is over attending mosque services for the fear the FBI might be looking over their shoulder.” Farhanda Khera of Muslim Advocates, which also sued to obtain the guidelines, told Josh Gerstein at Politico.

That’s what I was wondering when I read that Attorney General Michael Mukasey yesterday insisted, once again, that President Bush doesn’t need to pardon himself and his senior administration officials who authorized the use of waterboarding and other forms of torture on detainees as part of “enhanced” interrogations. As I’ve noted before, there’s been lots of discussion lately about whether Bush will do that, and I’ll be examining that more thoroughly in a future article. But Mukasey and others in the administration have been insisting that pardons aren’t necessary because in fact, nobody did anything wrong.

“There is absolutely no evidence that anybody who rendered a legal opinion either with respect to surveillance or with respect to interrogation policy did so for any reason other than to protect the security of the country and in the belief that he or she was doing something lawful,” Mukasey told reporters yesterday. “In those circumstances, there is no occasion to consider prosecutions, there is no occasion to consider pardons,” Mukasey said.

Even if we didn’t have a long history in the United States of prosecuting people for waterboarding as a well-known form of torture, both in federal courts and in war crimes tribunals, as I’ve explained in detail before, the odd thing about Mukasey saying that is that just a year ago, when he was facing confirmation hearings, he insisted that he just didn’t know if waterboarding was torture. He’d have to look into it some more, and learn more about how it was done, he told the Senate.

Waterboarding, as most people by now know, consists of drowning a person so that they believe they’re going to die, but stopping the procedure just seconds before they do. In other words, you’re threatening to kill them and demonstrating that you just might do it, and causing physical and psychological harm in the process. Not surprisingly, there’s never been any question before, in US or international law, about whether that’s torture.

As Peter Carr, a Justice Dept. spokesman told me when I last wrote on this subject: “Prior to his confirmation, the attorney general made clear that if waterboarding were torture, it would be unlawful both under the Anti-Torture Statute and the Constitution. He subsequently reviewed the opinions of the Office of Legal Counsel as they apply to current techniques and found the opinions to be correct and sound.”

Hmmm. That sounds like a pretty lawyerly way of saying that although it’s always been considered torture before, we’re not going to admit that now because we don’t want to be prosecuted for it. The thing is, for president Bush to issue pardons for the practice would be implicitly admitting that it was illegal. So maybe if Mukasey keeps insisting that it wasn’t illegal and therefore pardons aren’t necessary, then that will just become true?

I guess the answer to that question will be up to the next administration.

In addition to the highly flattering portrait of Holder as a young man in today’s New York Times, he’s getting praise from some of the most serious critics of the Attorney Generals under George W. Bush.

U.S. Senator Sheldon Whitehouse (D-R.I.), for example, a fierce critic of Attorney General Alberto Gonzalez for his politicization of the Justice Department and the approval of torture methods such as waterboarding during his tenure, gave Holder a ringing endorsement today.

“Our new Attorney General must restore the Justice Department’s proud tradition of independence and excellence, and insulate it from improper pressure even when it comes from the White House,” said Whitehouse. “No one will fill that role more capably than Eric Holder.”

Whitehouse, who was the U.S. Attorney for Rhode Island during the Clinton administration when Holder was deputy AG, added that he “can attest to his vast experience, his calm judgment, his legal skill, and his unswerving loyalty to the Department and its principles. I have no doubt that he will offer the independent, wise leadership necessary to repair the terrible damage of the Bush years. He has my enthusiastic support.”

Sen. Patrick Leahy (D-Vt.) has previously supported the nomination of Eric Holder, and noted that even the Senate Judiciary Committee’s top Republican, Sen. Orrin Hatch of Utah, has praised the former judge and federal prosecutor. “I respect the man and I intend to support him,” Hatch told reporters a few weeks ago.

Although Holder has faced criticism for his role signing off on President Clinton’s pardon of fugitive financier Marc Rich in 2001, Holder has acknowledged that that was a mistake, and many key senators on the judiciary committee appear to be giving him a pass on that stumble.

Holder was confirmed easily as deputy attorney general, after a two-hour confirmation hearing. Talkleft has excerpts and a transcript.

As Josh Micah Marshall at Talking Points Memo reported Saturday, Rep John Conyers (D-Mich), chairman of the House Judiciary Committee wrote an angry letter to Michael Chertoff, secretary of the Dept. of Homeland Security, saying the disclosure, by at least one “federal law enforcement official,” according to The AP, was “very disturbing” and warrants an investigation.

In fact, the disclosure wasn’t just disturbing –- it was either illegal, or it was approved directly by the U.S. attorney general. And, it endangered Onyango and any of her family that continue to live in Kenya.

According to the U.S. Code of Federal Regulations, 8 CFR 208.6, it is illegal to disclose that a noncitizen has applied for political asylum, without her explicit consent “or at the discretion of the attorney general.”

The Supreme Court, in United States v. Ray, explained the reason: because the applicant or her family could be subject to retaliation in their home country.

As an immigration authority fact sheet, cited by the court, explains: “Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant’s family members who may still be residing in the country of origin.”

According to Amnesty International, the last year in Kenya has seen a crisis of deadly political violence and grave human rights violations.

In other words, this leak wasn’t just a typical ugly attack against the Democratic presidential nominee — it may have been an unusually dangerous one.

Illustration by: Matt Mahurin

Before a packed crowd at the Netroots convention, Cass Sunstein, a law professor at Harvard and the University of Chicago and a legal adviser for Sen. Barack Obama, was asked how the next president should address the Bush administration’s potential war crimes. When Sunstein said the new adminstration must be cautious and not partisan in the use of the prosecutorial power, though egregious acrs should not be ignored, he was still met with a chorus of boos and angry rejoinders that the president and his Cabinet cannot remain above the law.

Since then, legal experts have generally agreed that the next administration is unlikely to prosecute Bush administration officials for authorizing the torture of suspected terrorists — no matter how many laws the government officials broke. But that hasn’t placated many others, like George Washington University Law Professor Jonathan Turley, or the constitutional lawyer and author Glenn Greenwald, who argue that holding policy-makers accountable for their actions is critical to restoring the reputation of the United States — not to mention respect for the rule of law.

Illustration by: Matt Mahurin

Indeed, how can a new president refuse to prosecute Bush administration officials for authorizing the same acts, like waterboarding, that the United States has previously prosecuted as contrary to U.S. and international law?

The Washington Post reported Tuesday that the Bush administration had issued secret memos in 2003 and 2004 explicitly endorsing the Central Intelligence Agency’s use of waterboarding and other harsh interrogation techniques — otherwise known as torture — against suspected terrorists.

Though Atty. Gen. Michael Mukasey still hasn’t said whether he believes waterboarding constitutes torture, the evidence of illegal conduct by senior administration officials is getting harder and harder to avoid.

In a recent address to the Assn. of Former U.S. Attorneys, Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney, noted that waterboarding, which the Bush administration’s Office of Legal Counsel declared legal in 2002 (the Justice Dept. now claims the CIA no longer uses it as an interrogation technique), had long been considered torture. In fact, it had earlier been prosecuted by U.S. authorities.

“I was astounded that the research by the OLC, which supported determining that waterboarding was lawful, had huge gaps in it,” Whitehouse told The Washington Independent last week. “They went so far as to go find some Medicare reimbursement statute to serve their purpose. One strains to find the relevance of that to enemy prisoner interrogation.”

“There are a whole variety of far more relevant things they could have found if they had taken a look,” Whitehouse continued, noting that the U.S. itself prosecuted waterboarding of American soldiers after World War II; waterboarding by American soldiers in the Philippines, and “water torture,” as it’s also been called — most recently by a local sheriff in Texas.

Atty. Gen. Michael Mukasey (WDCpix)

Other legal experts — some still government officials — have made the same point. In the Columbia Journal of Transnational Law, for example, Evan Wallach, a judge on the U.S. Court of International Trade and expert on the laws of war, wrote: “Not so very long ago, the United States, acting alone before domestic courts, commissions and courts-martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.”

Wallach declined to comment for this article, saying that these these issues could come before him or other federal judges. But in The Washington Post last year, Wallach noted that, among other instances, the U.S. initiated war crimes prosecutions against Japanese soldiers who water-boarded U.S. pilots during World War II.

However, John Yoo and his colleagues at the Office of Legal Counsel didn’t need to look back that far to learn that the United States has long considered the practice illegal. As recently as 1983, as Whitehouse reminded the former U.S. attorneys earlier this month, the Justice Dept. itself prosecuted a Texas sheriff who had used waterboarding to extract confessions from arrested suspects. Six former inmates testified that they had been waterboarded between 1976 and 1980.

Some lawyers who participated in that case are still at the Justice Dept. today. None returned calls for comment. In its written opinion affirming the conviction of County Sheriff James Parker, of San Jacinto County, and his deputies, the Fifth Circuit Court of Appeals in 1984 referred to waterboarding as “torture” a total of 12 times.

At a Senate Judiciary Committee hearing in July, Mukasey, responding to questions about the waterboarding case, U.S. v. Lee, said it wasn’t relevant because the officers were prosecuted under the civil-rights laws. “It was not a case that dealt with whether a technique is or isn’t torture under the torture statutes,” Mukasey said.

Peter Carr, a Justice Department spokesman, told TWI yesterday that the Lee prosecution “was fully consistent with the legal advice OLC provided to the CIA.”

Though “the attorney general has not reached any legal conclusion concerning the lawfulness of the technique as used by the CIA,” Carr added, “Prior to his confirmation, the attorney general made clear that if waterboarding were torture, it would be unlawful both under the Anti-Torture Statute and the Constitution. He subsequently reviewed the opinions of the Office of Legal Counsel as they apply to current techniques and found the opinions to be correct and sound.”

In other words, the Justice Dept is still dodging the question of whether waterboarding is torture — and, therefore, whether those who approved it violated the law.

In the Lee case, however, neither the court nor the federal prosecutors appear to have had any question about whether drowning a prisoner just up to the point of death was torture. As the federal appellate court described it, “Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a “water torture” in order to prompt confessions to various crimes.”

The case, accessible online or in any law library, was easily available to the Justice Dept., lawyers insist. Yet when Yoo drafted his now-infamous “torture memo” in 2002, he ignored such relevant cases and instead drew on an obscure Medicare reimbursement statute to define torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

That extreme language was then used to justify waterboarding. The federal anti-torture statute adopted in 1994, meanwhile, defines torture far more broadly, as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

“Severe mental pain or suffering” is defined as “the prolonged mental harm caused by or resulting from,” among other things, “the intentional infliction or threatened infliction of severe physical pain or suffering;” “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality,” or “the threat of imminent death.” It’s difficult to see how drowning until just before the point of death wouldn’t qualify.

Sen. Sheldon Whitehouse (WDCpix)

So how did Yoo miss the relevant law?

“Either the quality of their research was dismal,” said Whitehouse, who sits on the Senate Intelligence Committee, and therefore has reviewed many of the memos that remain classified, “or they did find it and they didn’t care to go through the intellectual exercise to distinguish it from the current situation. They wrote an 85-page opinion citing the Medicare statute, and none of the memos even mentioned these cases.”

Daniel Hedges, who was the U.S. attorney in the southern district of Texas leading Parker’s prosecution, recalled the case. “It was certainly a violation of the civil rights of these people, there was no question of that,” said Hedges. “The torture was certainly a part of it.”

Parker was convicted and sentenced to 10 years in prison. As The New York Times reported at the time, the sentencing judge told Parker that the sheriff had allowed law enforcement to “fall into the hands of a bunch of thugs….The operation down there would embarrass the dictator of a country.”

In fact, such actions a few years later led a U.S. federal court to hold Philippine President Ferdinand Marcos liable for $766 million, in part for having subjected political prisoners to waterboarding.

Sen. John McCain, who notes frequently that he was held prisoner by the North Vietnamese, has said of waterboarding: “It is not a complicated procedure. It is torture.”

Given the history of prosecutions, it’s hard to see how OLC, whose lawyers normally consult the relevant Justice Dept. lawyers, in addition to doing independent legal research, could have reached a different conclusion.

“Rather than bring people into the loop, they just made the decision between themselves and the vice president’s office,” said Whitehouse. “The vice president’s office clearly wanted a particular result and didn’t see the need to bring other people in who might disrupt the march toward that result.”

Jack Goldsmith, a Harvard Law professor who headed the OLC in 2003, has described his former office as a sort of “independent court inside the executive branch.” But not during much of the Bush presidency.

“As I absorbed the opinions,” he wrote in his book, “The Terror Presidency,” referring to the opinions issued by OLC after Sept. 11, 2001, “I concluded that some were deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.” (Goldsmith declined to be interviewed for this article.)

To Whitehouse, the memos reveal “embarrassing, fire-the-associate quality legal research and analysis.” That’s “a sickening fall from grace for an office that’s always been a source of real pride.”

But to Bush administration officials, such shoddy lawyering may mean something far worse than embarrassment: the sort of deliberate misstatements of the law that will protect neither the lawyers nor their clients from subsequent prosecution.

In September, Secretary of State Condoleezza Rice provided new testimony, confirming that the White House was actively involved in talks over the CIA’s use of torture in the interrogation of prisoners in 2002 and 2003. That means that the responsibility for those practices, despite the legal memos justifying them, may well reach all the way up the chain of command.

It is going to be up to the next president to decide whether those commanders should be held in any way accountable.

Attorney General Michael Mukasey (WDCpix)

The controversial and complex U.S. attorneys scandal reignited Monday with the release of an internal Justice Dept. report that details how former Atty. Gen. Alberto Gonzales turned a blind eye as his chief of staff orchestrated the unprecedented dismissal of nine federal prosecutors.

In response, Atty. Gen. Michael Mukasey named a special prosecutor, Nora R. Dannehy, acting U.S. attorney in Connecticut. He said Dannehy would investigate whether there was a “prosecutable offense” in the firing of the federal prosecutors, which Mukasey described as “haphazard, arbitrary and unprofessional.”

The 356-page report, written by the Office of Inspector General and Office of Personal Responsibility in the Justice Dept., only partly explains the roles of former White House officials Harriet Miers and Karl Rove, who allegedly sought to remove prosecutors the Bush administration considered disloyal. Neither Miers nor Rove would cooperate with investigators.

Illustration by: Matt Mahurin

The internal report bolsters congressional investigators’ contention that officials in the Gonzales Justice Dept. fired the attorneys for improper reasons and then misled Congress about the dismissals by lying under oath.

But will the appointment of a special prosecutor intensify the U.S. attorney probe — or does it mean the scandal is on its last legs?

Dannehy, for example, could receive broad authority to press criminal charges. Or she might have the same power as the congressional investigators, who futilely sought testimony from Rove and Miers.

“It is not clear that she will be authorized to subpoena White House officials,” Sen. Sheldon Whitehouse, (D-R.I.), a member of the Senate Judiciary Committee, said at a news conference. “The appointment raises a whole new set of questions.”

The legal authority of any special prosecutor is up to the attorney general. When Atty. Gen. John Ashcroft told Patrick Fitzgerald in 2003 to look at the White House’s role in the disclosure of the identity of covert CIA agent Valerie Plame, Fitzgerald got wide latitude to subpoena Bush administration officials. But he had to turn all transcribed interviews over to the Justice Dept. — which has selectively disclosed their contents.

Mukasey did not announce what powers he gave Dannehy, and the Justice Dept. declined to provide the terms of her appointment. Peter Carr, a department spokesman, did say that Dannehy would report to Mark Filip, the deputy attorney general.

The dismissals of the nine prosecutors in 2006 have morphed into one of the administration’s biggest political scandals and resulted in the resignation last year of Kyle Sampson, chief of staff to Gonzales, Paul McNulty, the deputy attorney general and, eventually, Gonzales in August 2007.

On Dec. 7, 2006, Sampson called for the resignation of seven U.S. attorneys: Daniel Bogden (Nevada); Margaret Chiara (Michigan); Paul Charlton (Arizona); David Iglesias (New Mexico); Carol Lam (Southern California); John McKay (Washington); and Kevin Ryan (Northern California).

Earlier, the Justice Dept. had told H.E. “Bud” Cummins, the federal prosecutor in Arkansas, to resign in June 2006. It also had asked Todd Graves, the U.S. attorney in Missouri, to leave in January 2006.

Justice Dept. officials gave conflicting answers when the House and Senate judiciary committees inquired into the dismissal of the federal prosecutors, who normally serve four-year terms and are replaced at the start of an administration.

But congressional investigators waited until the Justice Dept. released its internal report before pressing for a criminal probe.

After a 19-month investigation, Justice’s inspector general concluded that Gonzales was “remarkably unengaged” in the dismissal plans, which were devised after Bush’s reelection in 2004. It found that Sampson and Miers, then-White House counsel, essentially dictated the firings.

Miers suggested to Sampson that all 93 U.S. attorneys be fired.

Sampson revised that idea. “The vast majority of U.S. attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies,” Sampson wrote in a January 2005 email to the White House. “I suspect when push comes to shove, home-state senators likely would resist wholesale (or even piecemeal) replacement of U.S. attorneys they recommended. …but if Karl [Rove] thinks there is the political will to do it, so do I.”

A week before the dismissals of seven prosecutors in December 2006, Sampson sought final approval from Gonzales, who is depicted in the internal report as mostly out of the loop about the plan. According to several witnesses in the Justice Dept., Gonzales signed off on it. But the attorney general later told investigators that he didn’t recall the meeting with Sampson.

While the report claims that Miers generally lead the push for the firings, Rove is specifically connected with Iglesias’ ouster. Rep. Heather Wilson (R-N.M.) told Justice Dept. investigators that, in November 2006, she told Rove, “For what it’s worth, the U.S. attorney in New Mexico is a waste of breath.”

According to Wilson, Rove responded, “That decision has already been made. He’s gone.”

Indeed, shortly before that conversation, Iglesias had been added to the list of U.S. attorneys the administration wanted out. In October 2006, Wilson and Sen. Pete Domenici (R-N.M.) had both complained to the Justice Dept. that Iglesias was not pursuing public corruption and voter-fraud cases — including a case related to Wilson’s House reelection. Domenici and Wilson are both retiring from Congress.

But while there is strong evidence that Iglesias was improperly dismissed, the details of the other firings remain murky two years later.

Cummins and Graves may have been fired for purely partisan reasons. Others, such as Bogden and Charlton, may not have pursued obscenity and death-penalty cases the way the Bush administration wanted them to. Only Ryan is considered to have been fired for legitimate, non-political reasons.

The question now is whether the special prosecutor can do what the Justice Dept. investigators couldn’t–compel Rove, Miers and other White House officials to speak, and then determine if there was criminal wrongdoing in the firings.

“The investigation warrants further inquiry,” said Sen. Arlen Specter (R-Pa.), ranking Republican on the Judiciary Committee, at the news conference yesterday. “And the Bush administration has taken steps to get to the bottom of it with a special prosecutor.”

But Rep. John Conyers, (D-Mich.) chairman of the House Judiciary Committee, said that Mukasey hurt the “credibility and independence” of the investigation by not naming somebody outside the Justice Dept.

Still, much will depend on Dennahy’s legal skills.

“It really depends on whether the individual exercises the prosecutorial independence they’ve been given,” said Greg Mark, a law professor at Rutgers University.

Dennahy has been a prosecutor for 17 years and is best known for the bribery prosecution of former three-term Connecticut Gov. John Rowland. Her most recent notable prosecution was a scheme by Mafia members to infiltrate Connecticut’s trash pick-up system.

“Dennahy is pretty positively viewed by people in Connecticut,” said Scott Horton, a Columbia University law professor and vocal critic of the Bush administration. “But does she have the stature and independence to deal with high-powered Washington corruption? Connecticut is no preparation for that.”