It was not just any after-dinner speech.
Last Thursday night, at the annual gala of the Federalist
Society, Attorney General Michael Mukasey delivered a keynote
address that will go down as a speech of historic proportions: a
solemn, powerful, and disarmingly blunt apologia for the Bush
Administration’s legal positions and actions in War on Terror.
The tough, no-nonsense, stoic former Chief Judge of the U.S.
District Court in Manhattan, who inherited from his predecessor,
Alberto Gonzales, a Justice Department that had become a shooting
target for liberal critics in Congress, the legal academy, and
the media, answered those critics head-on.
And he put down a marker for the incoming Obama administration:
given the dangers involved and the stakes for the security of
Americans, there will have to be a better reason than the empty
criticisms voiced to date to justify an Obama departure from the
Bush legal architecture.
The familiar refrain that the War on Terror has trampled
constitutional rights, civil liberties, and even the rule of law
itself rests “on a very dangerous form of amnesia that views the
success of our counterterrorism efforts as something that
undermines the justification for continuing them.” Because the
Administration’s strategy has been “successful based on what
matters most” — that in the more than seven years since
September 11, 2001, Al Qaeda hasn’t launched another terrorist
attack on American soil — the critics seem to assume that Al
Qaeda “never posed much of a threat after all.”
But the threat that materialized on 9/11 was as unprecedented as
it was real. The fact that “19 lightly armed terrorists could
murder nearly 3,000 Americans” in the “most catastrophic attack
on our homeland since Pearl Harbor,” Mukasey said, created a new
kind of “asymmetric warfare” that forced President Bush and his
advisors to reassess and revise not just the military, but also
the legal, tools to fight back. The Bush response, as he
summarized it, was to:
• Declare war: Some critics still argue
that “war” in this situation is unjustified. One does not declare
war on isolated instances of crime. But systematic terrorism
can’t be addressed after the fact, as America did as late as the
1990s, just by sending the FBI to collect evidence and then
prosecuting the perpetrators. Indeed, Osama bin Laden was already
under indictment for the bombings of U.S. embassies in Kenya and
Tanzania. On September 11, 2001, the Bush Administration finally
recognized the war that Al Qaeda and other groups had declared
years earlier.
• Capture and detain the enemy: Unlike
ordinary criminals who are apprehended, indicted, and often freed
on bail, terrorist warriors captured by the U.S. military should
not be returned to the battlefield (or released to join it). They
needed to be detained, and where appropriate in military
judgment, transferred to the U.S. naval station at Guantanamo
Bay.
• Reorganize government to keep Americans safe from
attack: Domestic security agencies throughout the
executive branch were brought under the umbrella of the new
Department of Homeland Security, and a “Director of National
Intelligence” was established to coordinate intelligence efforts
in tracking and preventing terrorist attacks. The FBI was
restructured to gather intelligence beforehand, not just gather
evidence after, attacks.
• Enhance intelligence gathering: The
lightning pace of technological advances in recent years required
new legislation — the Patriot Act and modernization of the
Foreign Intelligence Surveillance Act — to allow analysts,
investigators, and intelligence professionals to access data
about the enemy’s communications and movements.
Typical of the critics of these and other Bush legal policies,
Mukasey said, was the head of a nonpartisan legal organization
who gave a speech condemning the “oppressive, relentless, and
lawless attack by our own government on the rule of law and our
liberty.” Mukasey noted that the lawyer didn’t rely for his
criticisms on the text of the Constitution, statutes, treaties,
or laws. Instead, he cited the New York Times, the
Washington Post, and the New York Review of
Books. There has been a widespread condemnation of the Bush
War on Terror by critics who fail to distinguish 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.”
And even when legal arguments are raised against the Bush
policies, they fail to acknowledge that there is an equally, if
not more, powerful legal justification to support the Bush course
in uncharted waters when Americans’ safety and security is at
stake. For example, the Bush position that such non-citizens held
abroad cannot use the U.S. civil courts to challenge their
detention is grounded in the text of the Constitution, historical
practice, and — before several months ago — Supreme Court
precedent.
As Mukasey noted, even the majority of the Supreme Court in the
recent Boumedienne decision (allowing Guantanamo inmates
to file habeas corpus petitions in U.S. federal courts
challenging their detention) acknowledged that the Court had
never before held that noncitizens detained by our government
outside the United States had any rights under our Constitution.
(Hitler’s “willing executioners” would doubtless have been
pleased to assert their rights under the U.S. Constitution to
challenge their detention while awaiting trial at Nuremberg.)
Now that a 5-4 majority of the Supreme Court has given those
detainees such “rights” (the text of Constitution actually calls
the writ of habeas corpus a “privilege,” and says that it “shall
not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”), the first federal court
rulings handed down last week ordered 5 of the first 6 detainees
released. In an op-ed piece published in the Wall Street Journal
the morning after his speech, Mukasey said the general problem
with these hearings is the attempt to apply “a civil litigation
framework to wartime decisions that often must be made on the
basis of the best available intelligence.” Accordingly, he
warned, courts are going to arrive at different answers in the
some 250 Guantanamo habeas cases now pending. And “I fear,” he
said, that some of those answers will “create risks for our
national security.”
Bush antagonists in Congress have asked the Attorney General to
appoint a special counsel to open a criminal investigation into
the actions of the President, cabinet members, administration
lawyers, and intelligence officers in connection with CIA
interrogation of captured members of Al Qaeda. Mukasey said
they’ve presented no evidence that these government officials
acted with “any motive other than a good-faith desire to protect
the citizens of our Nation from a future terrorist attack,” and
there is no indication that any government official “sought to
authorize any policy that violated our laws.”
IRONICALLY, IN THE MIDDLE of Mukasey’s speech about opponents of
the War failing to make their case in law or reason, he was
interrupted by a heckler — a state court judge — who stood and
shouted at him, “Tyrant! You ARE a tyrant!” Pausing briefly to
look in the direction of the heckler, but returning immediately
to his speech, Mukasey was too much of a gentleman to quash the
outburst by saying that such wild charges and name-calling
illustrated precisely the point of his remarks.
The Attorney General made it almost to the end of his speech, and
then, suddenly and inexplicably, he faltered and collapsed. Shock
and concern over his collapse overshadowed his final point: that
the Bush administration had tried “to make sure that our
counterterrorism efforts stood on a sound institutional and legal
footing so that the next Attorney General and the new
Administration have what they need to assure the safety of the
Nation.”
The Obama administration, as he noted, will review those
institutions and legal decisions that have kept us safe for the
past seven years. He expressed “hope” that the Obama
administration “understands the threat we continue to face and
that it shares the priority we have placed on remaining on the
offense to prevent future terrorist attacks.”
As we left the ballroom after the Attorney General was rushed to
the hospital, those present had a dual sense of uncertainty —
about his condition and about the future course of the War on
Terror.
As to the former, thankfully, the word came within hours that the
Attorney General was well. As to the latter, one can say only one
thing for sure: the Mukasey speech is one that history will
vindicate, in one way or another.
