Unnoticed But Extremely Important

You have probably heard or read that Attorney General Michael Mukasey collapsed Thursday night while making a speech at The Federalist Society’s Annual Dinner.   His collapse received wide attention in the media, but the substance of his speech, which was incredibly important, was ignored.   Fortunately, it appears that Mr. Mukasey did not have a heart attack or a stroke as originally feared.   He apparently collapsed from exhaustion, and he was released from the hospital yesterday. 

Mr. Mukasey has been the Attorney General of the United States for only a year.     Unlike the previous Attorney General, Mr. Mukasey is widely respected by both Republicans and Democrats.   He is the former Chief Judge of the United States District Court for the Southern District of New York. 

I found the text of Mr. Mukasey’s speech, which he was unable to finish, on the internet.  I read the entire speech and concluded that what Mr. Mukasey had to say is extremely important.  In my opinion, the speech should be required reading for every American who is concerned about our national security, which hopefully includes everyone who is reading this blog.   I hope you will take the time to read the following excerpts from the speech, which represent about one-half of the original text:      

"The Administration's strategy in defending the Nation from terrorist threats has not only been comprehensive, but has also been successful based on what matters the most:  Since September 11th, Al Qaeda has not managed to launch a single act of terrorism in the United States.  This is a remarkable achievement that no one could have predicted in the days following the September 11th attacks.  The credit for that goes to many people, including many brave men and women in our armed forces, and many brave men and women in law enforcement and intelligence services, who put their lives at risk routinely in parts of the world most Americans, to their great comfort, will never encounter.  Much of that credit also goes to the President; in this area, as in many others, leadership and resolve matter. 

“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. 

“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. 

“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. 

“Now it is hardly surprising that the questions of how we confront the terrorism threat should generate vigorous debate.  These questions are among the most complex and consequential that a democratic government can face.  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.  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. 

“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. 

“If you listen only to the critics, you might assume, for example, that this Administration, by asserting that habeas corpus did not apply to alien enemy combatants, had tried to deprive the judiciary of a time-honored role in second-guessing our military commanders' decisions concerning whom to detain on foreign battlefields.   Of course, before this armed conflict, federal judges have never asserted the authority to afford habeas corpus to alien enemy combatants captured and detained abroad. 

***** 

“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. 

***** 

“I focus on these types of criticisms not because they are so extraordinary, but because they are unfortunately so typical of people who substitute their policy views for any serious legal analysis and who would turn a good-faith legal disagreement into a battle over the purported existence or non-existence of the rule of law.  The irony, of course, is that the law requires a serious analysis of text, precedent, and history, and it does not serve the rule of law to substitute a smug sense of outrage for that kind of analysis.

"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. 

 “I have spoken in more detail about these concerns in several recent speeches, in which I drew substantially on former Assistant Attorney General Jack Goldsmith's book, The Terror Presidency. 

“Let's all remember what Professor Goldsmith has said about what he saw during his time in the Administration.  Although he may have disagreed with some of the legal reasoning employed in making those decisions, he made it perfectly clear that despite his disagreement he saw no evidence that those who provided that advice did so in bad faith, for any reason other than to protect the country during a time of war, or with the belief that what they were doing was in any way contrary to the law.  It is important for those who are so quick to condemn the attorneys who were working nearly around the clock, for months on end, in the wake of September 11th, to keep that in mind. 

“In his book, Professor Goldsmith describes what he calls ‘cycles of timidity and aggression’ among political leaders and commentators in their attitudes towards the intelligence community.  These cycles have played out before—from the 1960s through the 1990s, but those past cycles are now mainly of historic interest.  The most recent cycle is of much more than historic interest.  As Professor Goldsmith explains, following the September 11th attacks, ‘The consistent refrain from the [9/11] Commission, Congress, and pundits of all stripes was that the government must be more forward-leaning against the terrorist threat: more imaginative, more aggressive, less risk-averse.’ 

“After going seven years without another terrorist attack, our intelligence professionals and national security lawyers now hear quite a different message.  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 counterterrorism policy based on their good faith belief that such a policy is lawful, they may one day be prosecuted for it. 

“The competing imperatives to protect the nation and to safeguard our civil liberties are worthy of public debate and discussion, and congressional oversight and review of our intelligence activities is vitally important.  But it is equally important that such scrutiny be conducted responsibly, with appreciation of its institutional implications.  We want lawyers to give their best advice to those who must act, and we want those who must act to know that they can rely on that advice. 

***** 

 “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 naive 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.”