Saturday, November 22, 2008

In the Glare of a New Administration, Mukasey Defends America's Counter-Terrorism

Cross-posted by Maggie at Maggie's Notebook

U.S. Attorney General, Michael Mukasey

Michael Mukasey, the current U.S. Attorney General, stepped to the podium at a meeting of the Federalist Society to defend Bush 43's strategy to keep America safe after the 9/11 attacks - "a remarkable achievement," he said, despite the "relentless criticism" in the media, in Congress and the "legal academy."

This important speech never really reached the light of day as General Mukasey, in a frightening and dramatic moment, slurred his words and fainted on the stage. It was perhaps, only a faint, not a stroke or heart attack, caused by the late hour, the hot lights, and maybe the fact that a Washington State Supreme Court judge yelled loudly from the audience, "Tyrant. You are a Tyrant." Mukasey, obviously unsettled by the shouts, hesitated and then went on with his speech.

Richard Sanders, the distinguished judge, was described on The Factor as a "self-styled Libertarian and anti-war activist. This rag-tag activist Judge, one of many bloating our Courts today, confronted Mukasey during a formal invitation-only event. This man had avenues to get his message to Mukasey, but he chose to employ his base, rude and ugly self, obfuscating the right of all to hear an invited speaker.

Mukasey's speech, only a portion of which was delivered, touched on many important issues for the future of America. I'm sure he has delivered equally direct speech on terrorism and counter-terrorism in the past, but I know I've seldom, if ever, seen one reported widely in the press.

This one deserves to be heard. My highlights below: (Read the entire speech here)

Mukasey challenges the critics and speaks of the irony of our successful seven year defense of this Nation:
In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them.

In an odd way, we have become victims of our own success. In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn’t need these counterterrorism policies.
About the often discussed, and much misunderstood, rule of law:
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.

...There is, understandably, passionate debate about where the legal lines are drawn in this new and very difficult conflict and, as a matter of policy, how close to those legal lines we should go.

...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.
As an example of how critics ignore the rule of law, Mukasey cites an unnamed lawyer's condemnation of:
...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.”
The lawyer cited not the Constitution, treaties or laws, Mukasey says, but rather:
...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.
Of course, to those of us paying attention, this is no surprise.

On accusations of assaults on the Geneva Conventions: 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.
On the Obama Administration and the War on Terror:
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.
About the possibility that the new Administration will conduct a criminal investigation of the Bush Administration: 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.

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.
Mukasey ends his speech with the hope that America will continue to be on the offense, that the the new Administration 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," and that ongoing legal and policy debates will be 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."

I can't imagine the angst of the outgoing Administration - knowing that lawsuits will likely raindown, promising the hope and change of bringing George W. Bush to his knees.


  1. Thank you Maggie for this extremely important article.

  2. A Washington State Supreme Court Judge?!!?

    Unfortunately, he is not the only one polluting our courts. Whay a disgrace.