Constitutional Opinions

The Law on Terror

By 11.26.08

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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.

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About the Author

Wendy E. Long is counsel to the Judicial Confirmation Network.