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A Somber Mukasey, Taking on Critics

November 21, 2008 12:27 PM

Attorney General Michael Mukasey, consistently described as a “no-nonsense” man of integrity who brought a much-needed steady hand to a troubled Justice Department, last night delivered his most forceful statement yet on the administration’s legal policies in the War on Terror.

It was a remarkable speech—a staunch defense of the legal policies and a frontal assault on the “dangerous” rhetoric from critics on the Left, in Congress and in the media. Mukasey was near the very end of his remarks, with just a few sentences left, when he collapsed at the dais.

He was rushed to George Washington Hospital, where he stayed overnight for a battery of tests. Tests have come back normal; Doctors have ruled out a stroke or heart attack and now believe it may have been a fainting spell. Mukasey was released just after noon today.

But it was a frightening moment, and it came near the end of his strong speech, in which he took direct aim at the “relentless criticism” and overblown, irresponsible rhetoric he said he sees in the media, in Congress and in the legal academy.

Just as he was reaching his conclusion, and expressing hope that the Obama Administration would recognize that “national security lawyers in this Administration acted professionally and in good faith and that the country is safer as a result,” Mukasey began to slur his words.

He very laboriously managed to get out that one word, “result,” and began teetering at the podium. Frank Hanna, a Federalist Society supporter, ran to catch him as he fell. Instinctively, the crowd began saying “no” and “oh my god.” Many began frantically calling 9-1-1; some were openly crying. EMTs arrived about 20 minutes later and took him from the ballroom on a stretcher.

The fear and panic over Mukasey’s condition, understandably, somewhat superseded the very message he had so forcefully had just delivered at the Society's annual dinner. But his remarks--ardently defending the policies, taking square aim at critics and somberly warning of the consequences of irresponsible rhetoric and/or investigations-- are important and bear serious discussion.

It was, as I said, the most forceful and blunt talk he’s given to date. And it comes at a critical time, as members of Congress, law professors and civil liberties groups step up their criticism--and look to a new Administration to end the policies and investigate those who approved them.

But before looking forward, Mukasey looked back. The criticism of the terror policies rests, he said, on “a very dangerous form of amnesia” about the real and ongoing threat posed by Al Qaeda.

It’s been seven years since 9/11. Al Qaeda has not launched a single act of terrorism in the United States. This has been “a remarkable achievement,” Mukasey said, one “no one could have predicted.”

Instead of praise, however, there is relentless criticism, both partisan and grossly overblown, Mukasey said.

“In an odd way, we have become victims of our own success,” he said. “In the eyes of these critics, if al Qaeda had 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.”

Mukasey said the criticisms should not be confused with vigorous and understandable debate about complex and consequential legal issues. His beef was that the criticisms are frequently devoid of law and have degenerated into rhetoric.

And he gave an example from a speech delivered earlier this year by Michael Traynor, head of the “non-partisan” American Law Institute. In his speech, Traynor condemned the “oppressive, relentless and lawless attack by our own government on the rule of law and our liberty.”

Traynor went on to say Americas 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.”

Mukasey: “You can practically hear the rumble of tanks in the background.”

“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,” Mukasey continued. “Nor was there any discussion of the atmosphere in which these decisions were made.”

September 11, 2001 is receding into the distant past. But seven years ago, “there must have been almost unimaginable pressure, without the academic luxury of endless time for debate,” Mukasey said.

He then refuted point-by-point much of the criticism. Critics lash out at the administration for depriving federal judges of any role in second-guessing military decisions on who to detain on the battlefield. In fact, he noted, federal judges never before had that authority.

Critics denounce an assault on the Geneva conventions. In fact, he noted, the Conventions contain 319 articles, of which 315 are “plainly addressed to armed conflicts among nations that signed the Conventions. It’s “hardly surprising,” he said, that the administration concluded those provisions did not apply to al Qaeda, and it “hardly warrants” the “sweeping, dismissive and entirely conclusory criticisms so frequently heard.”

Mukasey then turned to the future, arguing that it’s his hope the Obama Administration “will maintain far more of this Administration’s legal architecture than the intemperate rhetoric in some quarters would seem to suggest.”

But he said he is concerned--especially when 56 members of Congress in June sent him a letter asking for a special counsel to conduct a criminal investigation of the President, members of his Cabinet, national security lawyers and intelligence professionals involved in the CIA interrogation program.

“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,” Mukasey said.

Congressional oversight and review of intelligence activities is important, he said. But it’s equally important, he said, that such scrutiny be responsible—because it could have real and damaging consequences to the nation’s security.

Mukasey referred to a book he greatly admires, The Terror Presidency, written by Jack Goldsmith, the former head of the Office of Legal Counsel. He has spoken frequently about the themes in Goldsmith’s book, which he believes delivers a troubling and dead-on message.

In the wake of 9/11, the consistent refrain was to be more aggressive, less risk-averse to the terror threat, Goldsmith writes. But now, seven years later, lawyers and intelligence personnel are hearing a different message—one that could have a chilling effect and make them less willing to aggressively pursue the threat.

Mukasey: “When 56 members of Congress request a criminal investigation of the professionals and lawyers, they should have no doubt that those lawyers and certainly their successors, will get the message: If they support an aggressive counterterrorist policy based on their good faith belief that such as policy is lawful, they may one day be prosecuted for it.”

It was a sobering speech, delivered in a somber and dispassionate tone. Leonard Leo, executive vice president of the Federalist Society, called it “pivotal,” in opening up “a very serious dialogue” about what the incoming Obama administration will do with the terror policies.

It also was critical, as Leo points out, in calling for a more "civil, reasonable debate" about these issues as a new administration takes office.

Mukasey was released from the hospital just after noon today; he has insisted on going back to his office. He is, as one of his top lawyers told me awhile ago, "really something."

He's also said something worth thinking hard about--whether you're in the opposition today or soon will be, on Jan. 20. These issues will not fade.

You can read his speech in its entirety here.

November 21, 2008 | Permalink | User Comments (8)

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Mukasey is just another Bush pal trying to build a shed over the rearend of those that participated in giving legal advise that led to violation of the Constitutional rights of American citizens and the torture of prisoners in our custody. These folks knew the results of their "opinions" and memos but now fear any light that may shine on them. Mukasey feels that if they have to face legal review of their actions they will be found guilty, yet the law shouldn't be feared by the innocent.

Posted by: outwest | Nov 21, 2008 12:58:08 PM

I don't think you can make a blanket statement that torture never produces actionable intelligence. How do you know? Certainly threat to life and limb would work wonders on me, how about you?

Are there not ticking bombs that are worth it? Or much simpler, say you are policeman who arrested a man who molests and kills children. If there's a 1% chance the last abducted girl is alive, how far would go to "lean" on someone?

One more thing on "crime", isn't intent and motive taken into account? Isn't there a point that no venal or perverse motive has been shown, only an assertion to protect the country.

Do you think spies have not be tortured in any of the wars of the 20th century under both Republican and Democratic administrations?

I think you will be profoundly disappointed in the Obama administration. It cannot by statute change the national interest and therefore the dictates of national security. It will surely not let any action go forward that would let any member of government acting in good faith be pursued by accusations of "war crimes" especially by any agents purported to represent "world justice"

Posted by: robert b | Nov 21, 2008 2:04:29 PM

Consider Khalid Sheik Mohammed. It's NOT that he deserves torture, though he certainly does as the planner of 9-11 and the personal executioner of Daniel Pearl and others.

There is first of all operational intelligence of which he was in charge. Was there something prevented? That's something we may not know for some time? But of course operational intelligence would fade rather quickly as a line of interrogation as someone replaced KSM

What I find intriguing as an interested observer of terrorism ( as we all should be or else we certainly will be anyway, if you get my drift) is that Al Qaeda itself changed dramatically around the time the West got ahold of KSM and some others in the chain of command. Now in 2001, Al Qaeda was dislodged and many in Afghanistan were killed or captured but not the leadership. And it seemed the "cell" structure remained intact, which allowed for secure worldwide operations.

But after KSM capture came a number of intelligence coups and the targeting of a number of leading AQ figures around the world. Coincidence? Nope.

But even more important than striking at leaders, who after all can be replaced, as some of the news reports would seem to indicate a hopeless Sisphyean task as in once again "A third ranking AQ figure is captured" or once again "Leader of AQ in Iraq (or Algeria or PI) killed in raid". However, what seems evident from the outside is that the "cell" structure of AQ has been ruptured. Why has AQ signed on other Islamist groups as affiliates? You might say that was because of a spread of popularity. But that makes no sense - success by mergers and acquisitions, or opinion polls is not what AQ is about. And joining with another group takes on all their problems including any double agents. But AQ has no choice if we somehow ruptured the communications and confidentiality of the "cells" which was their effective method to plan and execute mass terrorism without detection.

Posted by: robert b | Nov 21, 2008 2:39:32 PM

robert b, do you believe in torture? Do you believe America is well represented by torture? All of your "ticking bomb" stories come from watching too much TV and movies! We have held and questioned people in Cuba so long that their knowledge must be out of date, and if it was just because they hated the US, we create more people to hate us with torture and rendition than we hold. Colin Powell and John McCain both oppose torture and stated we were not doing it, contrary to evidence now existing, do you advocate torture (illegal by international law)?

How do you feel about completely unsupervised wire tapping of American citizens? There is clear evidence that our spies have done this (see testimony of those who sat around laughing at intercepts of our solders phone calls)and they use the same "legal" opinions that Bush did.

If we give up our rights because of the lies and opinions of those determined to go to war, the enemy has won. Our President is not a king and free to do as he and his "staff" see fit because their in-house lawyers say they can.

Posted by: outwest | Nov 21, 2008 3:04:29 PM

Can we agree that torture is immoral and criminal?

That Bush DOJ and OLC legal opinions justifying torture conducted by the CIA, US armed services and subcontractors were written after the fact and provided a shroud of cover for this criminal - war crime - endeavor?

Can we agree that Mukasey, if he has a shred of dignity remaining, knows this speech was a political act and abuse of his authority as Attorney General?

What does the writer, Ms Grrenberg not comment of the merit of Mukasey's case?

Posted by: Neil | Nov 21, 2008 3:35:21 PM

Like I said, the Daily Kossacks are likely to be disappointed.

Do you think Obama will undo the Patriot Act or defang a FISA revision that he just voted for that FINALLY was a permanent legal fix to meet the real demands of contemporary intelligence gathering?
NO, he and his Administration will and SHOULD use the tools available to it to defend this country.

And how long do you think it will it take to close Gitmo, the prison that is (not the entire base which we will only renegotiate with Cuba when the Castros die and their regime fall).

It will be more 2 years if ever to repatriate some (that is extradition to some harsh regimes - is that rendition to certain mistreatment??), try some (yes Khalid Sheik Mohammed will get his day in court not just Osama's chauffeur). Will we release some of those who cannot be tried without revealing what we know about sources?

I don't know about the laughing spies on soldier's phone sex. I don't know about you but it's stupid and it always has been do things either on the phone or on the internet you wouldn't say in Times Square.

But yes there is always the temptation of "Gyges' ring" whether or not it is legal wiretapping to pry for sheer prurient reasons because you are invisible.....

My dad was a telephone installer and repairman for 40 years and you'd be surprised at what has always been able to happen to your personal communications but how quietly but harshly phone companies deal with such activities.

Also part of Alex Bell's original deal with government for monopoly was to be subject to government requests especially in time of war, and that legacy remains, some of it tradition, some contractually or by statute, such as FISA immunity.

If you think Obama will put a big condom over your phone or modem to make it safe, I say I don't think so.

Posted by: robert b | Nov 21, 2008 3:45:03 PM

The only real torture that exist in the United States is having to listen to or read idiotic comments by left-wing, American liberals.

Instead of waterboarding these terrorists we ought to send in liberals to spend about a week with them. I gaurantee you that a week with an idiot liberal will make any terrorist start talking and giving up information. In fact it actually may be cruel and unusual punishment for any NORMAL human being to have to endure a liberal for more than a day.

God saves us from the insanity of liberalism!

Posted by: Liberal hater | Nov 21, 2008 3:56:18 PM

Sometimes the Bizarro comic gets what I consider the lib view of interrogation right - it hits the nail on the head, well if liberals worked with their hands and did anything forcefully that is)


Bubble court: Picture a prisoner in the witness stand / hot tub? "This court will not turn the bubbles back on until you tell us the truth"

Ouija-boarding: Picture a cell and an "interrogator" asking "Does this prisoner know anything?"

Posted by: robert b | Nov 21, 2008 5:49:45 PM

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