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.” 

Bad News for Republicans

One of my major concerns prior to the election was that Barak Obama would become the next President of the United States and the Democrats would gain a veto-proof majority in the United States Senate.   Under these circumstances, it is clear there would be no checks and balances on the power of the Democratic Party.    The Democrats would be able to pass anything they wanted with little opposition or debate.   Don’t forget we are talking about a Democratic Party that has moved sharply to the left and is controlled by liberals. 

The Democrats need 60 seats in the Senate to have a veto-proof majority.    They will have a minimum of 58 seats in January when the newly elected members of the Senate take office.   There are still two undecided Senate races.   A recount is underway in Minnesota, and there will be a run-off election in Georgia on December 2.    If the Democrats win in both Minnesota and Georgia, they will have their veto-proof majority, and there will be no way for the Republicans to block any legislation the Democrats want to pass.   Even if the Republicans win in Minnesota and Georgia, the Democrats will have 58 seats in the Senate and will be able to pass anything they want with the help of only two liberal Republicans.   There are several liberal Republicans in the Senate who would probably be more than happy to align themselves with the Democrats in order to win praise from the news media. 

NBC News distributes a daily e-mail called “First Read,” which generally reflects a liberal bias but also sometimes contains some valuable factual information.    Today’s version of First Read points out that even if the Democrats don’t reach 60 Senate seats this year, they will probably get there in 2010.   According to First Read, the Democrats will enter the 2010 elections for the Senate with a favorable hand.   In 2010, the Democrats will have to defend 16 Senate seats compared to 19 seats for the Republicans.   First Read believes the 16 seats the Democrats will have to defend in 2010 look reasonably safe at the present time.   On the other hand, First Read believes the Republicans will have to defend several seats where the Republican incumbent may retire or will face a serious risk of defeat.    The Republican seats identified by First Read as being challenging for Republicans or potentially left vacant by an incumbent who retires include those occupied by Mel Martinez of Florida, Jim Bunning of Kentucky, David Vitter of Louisiana, John McCain of Arizona, George Voinovich of Ohio, and Chuck Grassley of Iowa.  In short, First Read concludes that Democrats are more likely than Republicans to pick up Senate seats in 2010. 

The bottom line is that the near-term outlook for Republicans is grim.   I hate to admit it, but the Republicans deserve their fate.   The Democrats will be able to blame everything that is wrong with the country on George Bush and the Republicans for a year or so.   After that, they will have no excuses.    I hope the Democrats succeed because I want what is best for the country and for me personally.    In my opinion, however, the Democrats will not be successful if they actually implement the policies they are now proposing.    If they implement their agenda, they will push a country that is already on the verge of bankruptcy over the cliff.   The Republicans will then have an opportunity to regain some power, but they will inherit a situation that is even worse than the problems they have left for the Democrats to solve.   

Tolerating Intolerance

According to my dictionary, the word “tolerance” means “sympathy or indulgence for beliefs or practices differing from or conflicting with one’s own.”    The same dictionary defines the word “intolerant” to mean “unwilling to grant equal freedom of expression especially in religious matters or other social, political, or professional rights.”   In my lifetime, it seems to me that our society has become much more tolerant in some areas and much less tolerant in others.   

As a general rule, most people in our society are much more tolerant than they ever have been of people who have a different skin color than their own.    The best proof of our increased racial tolerance is the election of Barak Obama as the first black President of the United States.   With the exception of the controversial debate over whether the historical definition of marriage should be changed, I believe most people in today’s society are much more tolerant of gays and lesbians than they were even ten years ago.    Gays no longer feel the need to hide in the closet.   In addition, rightly or wrongly, our society today is much more tolerant of conduct that was once considered shameful if not immoral. 

Many universities and businesses pride themselves in their diversity programs.    To them, diversity means a group of people consisting of both men and women who do not share the same race, nationality or sexual orientation.   Diversity programs are designed to be symbols of tolerance and inclusiveness.  

Along with the increased tolerance in our society, there also has been an increase in intolerance.    From my perspective, most intolerance today does not relate to race, nationality, or gender.   Instead, it reflects an increasing inability on the part of many people to tolerate those with whom they disagree.    We love diversity as long as it does not encompass diversity of thought.   

There were many examples of intolerance during the recent presidential election.  The best example occurred when a 14-year-old school girl in Oak Park, Illinois decided to conduct an experiment on Diversity of Thought.  The results of the experiment were reported last week in The Chicago Tribune.   According to the report, Catherine Vogt, with the knowledge of her history teacher, wore a shirt bearing John McCain’s name to school one day and secretly recorded the comments of teachers and students in her journal.  She later wore an Obama shirt and also recorded the comments.   

The Chicago Tribune reported that Catherine quickly learned she was stupid for wearing a McCain shirt.  “People were upset.  But they started saying things, calling me very stupid, telling me my shirt was stupid and I shouldn’t be wearing it,” Catherine said.   “One person told me to go die.  A lot of comments about how I should be killed.”    One student suggested Catherine should be crucified for her political beliefs.   Even one of Catherine’s teachers insulted her.   One of Catherine’s classmates said she should be “burned with her shirt on.”   When Catherine later wore the shirt containing Obama’s name, she was praised for recognizing the error of her ways.   Her classmates told her she was smart after all.    

Unfortunately, Catherine’s experience is not unique.   There are many other examples of people who have trouble tolerating those with whom they disagree.  Here are just a few:    

 (1)    Studies have shown that many colleges and universities are dominated by administrators and faculty members who share a liberal political philosophy.   Many of these faculty members use their classrooms as a platform to promote their own political views rather than to encourage freedom of thought.    Conservative faculty members must hide their beliefs for fear of being denied tenure.   Conservative students hide their beliefs for fear of receiving a lower grade from a liberal faculty member. 

(2)    Many pastors in churches, both liberal and conservative, use their pulpits to promote their political beliefs and in doing so show disrespect and even intolerance for members of their congregations who do not share their political philosophy.  

(3)    Many liberal Christians take pride in their tolerance for Jews and Muslims but have little, if any, tolerance for other Christians who do not share their views.   Take a look at the internal fighting within many Christian denominations. 

(4)    It is not uncommon for politicians to want to silence those with whom they disagree.    Some liberals, for example, want to shut down “talk radio” because they disagree with most of the content.   Of course, they have no problem with the portions of the media that share their political views.  

(5)    As a society, we have no tolerance for statements that are deemed to be “politically incorrect.”   As I see it, the primary purpose of political correctness is to silence or punish those who have beliefs or an ideology that is inconsistent with the beliefs or ideology of those who have appointed themselves to establish the rules for acceptable speech.  In today’s society, a politically incorrect statement can ruin a previously well-respected career much faster than an act of incompetence.   For example, take a look at Lawrence H. Summers, the former President of Harvard University, who was forced out of his job after suggesting that women may not have the same innate abilities in math and science as men.   Those who were offended by the comment refused to accept Mr. Summers’ apology and still wanted his head on a silver platter.    Or consider former Senator Trent Lott, who lost his position as Senate Majority Leader and ultimately resigned from the Senate after making a politically incorrect comment while attempting to praise Senator Strom Thurmond at a party celebrating Senator Thurmond’s 100^th birthday.   Again, Senator Lott’s apologies were not enough to save him.  There are many other examples of long-term and honorable careers that have been destroyed by a politically incorrect comment made in a moment of weakness.   

I hope my observations are wrong, but it seems to me that most people do not value diversity of thought as much as they value diversity based on race, nationality, or gender. 

Unfortunately, many people who pride themselves in being progressive and open-minded show little tolerance or respect for those who have opposing views.   In discussing the Catherine Vogt Experiment on Diversity of Thought, John Kass, the columnist for The Chicago Tribune who broke the story, wrote:   “I dared to illustrate, through the actions of a brave 8^th-grade girl, that even high-minded liberal communities can be intolerant, no matter how many times parents gush on about ‘diversity’ at their cocktail parties.   So much for the audacity of hope.  But it’s also true that if Catherine lived in a beet-red community and wore an Obama shirt, she’d get a similar negative, intolerant and ugly reaction.”