Attorney General Mukasey’s Speech
Lost in coverage of Attorney General Mukasey’s collapse while giving a speech at the Federalist Society was the content of his speech. The prepared remarks can be read here. The speech deserved more coverage; here’s a taste.
When the terrorists attacked the World Trade Center in 1993, when Al Qaeda attacked the U.S.S. Cole in Yemen and our embassies in Kenya and Tanzania, the United States deployed the FBI to the scene to collect evidence, pursue leads and; ultimately, indict and prosecute at least some of those responsible.
Following the September 11th attacks, however, it no longer seemed prudent to treat international terrorism solely as a criminal matter where suspects are pursued and prosecuted only after they have perpetrated a crime. Indeed, at the time of the September 11th attacks, Osama bin Laden was already under criminal indictment for his role in the embassy bombings. Instead, the United States recognized the attack of September 11th to be what it was: an act of war — a war that had been declared years earlier by enemies of the United States, and indeed of civilized people everywhere. In response, this Nation, under our President, committed to a comprehensive offensive strategy against the terrorists abroad using every resource at our disposal—military, intelligence, financial and law enforcement.
The idea of treating terrorism as just another crime problem is a key failure of the Clinton years, as evidenced by how emboldened the terrorists became during those years. The law enforcement approach was made worse by the Jamie Gorelick concept of creating a wall between law enforcement and intelligence; this approach prevented law enforcement from passing on information to our intelligence experts that could have led us to some of the 19 hijackers and perhaps prevented 9/11. Despite the apparent failures of the Clinton approach and the success of the Bush approach, many liberals seem eager to return to the law enforcement approach and Gorelick style wall. This will be the most important issue to watch as Obama’s team takes shape.
As the end of this Administration draws near, you would expect to hear broad praise for this success at keeping our Nation safe. Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration’s accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe. We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well.
Mukasey talks about the amnesia people suffer from after seven years of preventing attacks. But he also points out the dangerous notion that has developed amongst some leftists that posits that the threat has been manufactured and never existed in the first place. I suppose these people believe Al Qaeda is a creation of the CIA or Haliburton.
Other critics question the premise—almost universally accepted following the September 11th attacks —that the United States is engaged in a war against Al Qaeda and other groups. Even more common is the casual assumption among many in media, political, and legal circles that the Administration’s counterterrorism policies have come at the expense of the rule of law. I am quite familiar with these criticisms, having heard them myself during my tenure as Attorney General.
This is where he spent most of the time with his speech, although I’m not sure how far into his speech he got before collapsing.
As the members of this Society know, however, answering legal questions often involves a close reading and a critical analysis of a text—the Constitution, statutes, judicial decisions, and the like. Regrettably, this point is much too often lost in the public discourse on the subject. Newspapers, commentators, and even prominent lawyers often discuss critical questions about national security policies with barely any acknowledgement that the answers may depend on the language of, say, the Constitution or a statute. And critics of this Administration’s policies rarely draw distinctions between whether a course of action is permitted as a matter of law, and whether that course of action is prudent as a matter of policy.
This is pointed criticism to be sure, but entirely accurate. How many times have we read in the NY Times or Daily Kos or Huffington Post that Bush is a monster and is “shredding” the Constitution but without any evidence to back up even an argument that he is doing something in violation of the law? These people just assume that the Patriot Act is an atrocity but can’t muster an argument that any aspect of it violates an actual Constitutional provision.
Mukasey gives a specific example of this, without revealing the name of the person or organization, but it sounds like the ACLU.
For example, earlier this year, the head of a legal organization that prides itself on what it calls its “nonpartisan approach to the law” gave a speech condemning what he called “the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty.” According to this person, we live now in a — “time of repression” where the “word ‘Patriot’ names a statute that stifles liberty,” and where we face “assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions.” You can practically hear the rumble of tanks in the background.
It is interesting—and telling—that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws. Instead, the author relied on such authorities as the New York Times, the Washington Post, and the New York Review of Books. This style of criticism can be called many things—provocative perhaps, or evidence that the author could be regarded by some as well-read —but what it cannot be called is a reasoned legal critique.
Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions. Nor was there any discussion of the atmosphere in which these decisions were made. I was in New York City when the two planes hit the Twin Towers, and I know what it was like to be in the city at that time. But I cannot speak from any experience of my own to what it was like to be a lawyer in the Justice Department at that time. There must have been almost unimaginable pressure, without the academic luxury of endless time for debate. The lawyers called on to make critical legal judgments at that time – and in real time – certainly had no time to consult the New York Review of Books when looking for answers to these difficult and pressing questions.
From this pointed attack, Mukasey moves on to discuss the Administration’s positions in some Supreme Court cases, where the Court reversed two hundred plus years of precedent.
As even the majority in Boumediene acknowledged, the Supreme Court had “never held that noncitizens detained by our Government” outside the United States had “any rights under our Constitution.” Indeed, following World War II, the Court had specifically rejected that habeas corpus would apply in that context. The Administration’s position in Boumediene thus was at least arguably justified by text, history, and precedent. A majority of the Supreme Court may have disagreed, but the Administration’s position hardly constitutes the attack on habeas corpus asserted, but not explained, by its critics like the author I quoted.
And when people denounce a purported assault on the “Geneva Conventions,” you might expect some level of specificity in the charges. One cannot “assault” a treaty as an abstract concept; one can only violate the treaty by acting contrary to its words. The Geneva Conventions contain 319 articles, of which 315 are plainly addressed to armed conflicts among the nations that signed the Conventions. It is hardly surprising that the United States concluded that those provisions would not apply to the armed conflict against Al Qaeda, an international terrorist group and not, the last time I checked, a signatory to the Conventions.
One common article appearing in each of the four conventions, Article 3, provides rules that govern “conflicts not of an international character,” such as civil wars. The President concluded early on that the global war against Al Qaeda had a decidedly “international character.” In Hamdan v. Rumsfeld, a majority of the Supreme Court disagreed. This narrow legal dispute—again turning on an Administration interpretation that was both reasonable and, indeed consistent with text, history and precedent—hardly warrants the sweeping, dismissive, and entirely conclusory criticisms so frequently heard.
The Boumediene case deserves more discussion but the point he is making is that the Bush Administration simply followed precedent after precedent but Justice Kennedy decided to upend these precedent in highly disingenuous way in order win the praises of the people who read the New York Times. If there was an assault on the Constitution, it was not from the Bush Administration but from the five Supreme Court Justices who rewrote 200 years of habeas corpus law. It’s an assault on the Executive branch of government and its ability to fight a war, an area that the courts are ill-suited to manage. Interestingly, Mukasey has an Op-Ed on this issue in the Wall Street Journal. His piece calls for Congress to enact legislation to clear up most of the mess that Kennedy et al created with this judicial usurpation.
His discussion of the Hamadan case is also pointed. Virtually all of the Geneva Conventions apply to signatories of the Conventions. Four provisions apply to conflicts that are not international in nature. Most people would like at the text and history of these provisions and conclude that a conflict in Afghanistan between the US and coalition allies and Al Qaeda, made up of Egyptians, Saudis, Jordanians, etc. and their Taliban allies was a conflict that was international in nature. It took some mighty wordsmith for Kennedy and Souter and their allies to redefine that language. Again, it’s not the Bush Administration who is assaulting the Geneva Convention but the Supreme Court; their efforts to give terrorists who are at war with the principles behind the Geneva Conventions protections under this very same documents are such an assault.
Mukasey then turns his attention to the far left critics as embodied by an unnamed Member of Congress.
In fact, this Administration has displayed a strong commitment to the rule of law, with all that entails and I suspect, and I admit it is a suspicion tinged with hope, that the next Administration will maintain far more of this Administration’s legal architecture than the intemperate rhetoric in some quarters would seem to suggest. I remain concerned, however, when relentless criticism of this Administration’s policies moves beyond simply disagreement into a realm where critics, and even public officials, seek to invoke the criminal justice system to vindicate their policy views. For instance, in June of this year, 56 Members of Congress sent me a letter requesting that I appoint a special counsel to conduct a criminal investigation of the actions of the President, members of his cabinet, and other national security lawyers and intelligence professionals into the CIA’s interrogation of captured members of Al Qaeda.
The Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.
Casual requests for criminal investigations, as well as the even more prolific conflation of legal disagreements with policy disagreements, reflect a broader trend whose institutional effects may outlast the current Administration and could well endanger our future national security.
Mukasey expresses hope that the Obama Administration will steer clear of this heated rhetoric and the baseless accusations; he’s hopeful that Obama and his legal team will see fit to keep many of Bush Administration practices.
I foresee, however, a string of investigations by John Conyers, Henry Waxman, et al and a return to the failed Clinton policies.
The next Administration will have the opportunity to review the institutions and the legal structures that this Administration has relied upon in keeping the nation safe over the past seven years. I am neither so proud as to think that the next Administration will be unable to make improvements, nor so naïve as to think that the policy choices, or even the legal judgments, that they make will be identical to ours.
What I do hope, however, is that the next Administration understands the threat that we continue to face and that it shares the priority we have placed on remaining on the offense to prevent future terrorist attacks. Remaining on the offense includes not simply relying on the tools that we have established, but also encouraging a climate in which both legal and policy issues are debated responsibly, in a way that does not chill the intelligence community and deter national security lawyers from making the decisions necessary to protect us.
And I am hopeful that some time from now, after the next Administration has had the chance to review the decisions made and the legal advice provided, it will acknowledge that despite any policy differences, the national security lawyers in this Administration acted professionally and in good faith and that the country was safer as a result.
Mukasey gave a strong defense of his Administration with some on target and pointed criticisms. In the end, he made an effort to reach out to those who will succeed him in the Justice Department. I hope they heed these remarks. But I remain skeptical.
A blog I’d never read before has excellent thoughts on this speech.
