Thursday, October 22, 2009


Unlike Greenfield, I've never met Michael Mukasey, never tried a case before him, have no particular sense of the man. There were positive words about his integrity and such when Shrub nominated him to succeed Gonzalez as Attorney General. Then he dissembled about waterboarding and we got the general idea; he was appointed to be a company man, a less foolish seeming Gonzo.

So maybe it's those remarks, and maybe it's just because I don't know the guy and have no experience with him, but also unlike Greenfield, I'm not surprised that Mukasey declared in the Wall Street Journal that terrorists can't be "successfully" tried in our criminal courts. Nor, I'm afraid, am I surprised by the reasons:
  • The inconvenience of special security.
  • The prospect that a terrorist might attack.
  • The prospect that a lawyer might file suit.
  • That pesky Constitution and Bill of Rights.
  • Those jurors who don't always impose death sentences.
So the man Bush chose to be attorney general agrees with the positions of the Bush administration. What else is new?

Greenfield does a fine job pointing out why those arguments are silly, wrongheaded, and deeply offensive. No need for me to rehash that ground. Go read it on his blog and recognize Mukasey for the toady that he is and his postitions for as rankly unAmerican as they are.

But there's another part of what Mukasey wrote that Greenfield doesn't get to (it's off his subject) but that's worth a bit of thought. "[C]ritics of Guantanamo," he writes, referring to pretty much everyone who doesn't think we should be in the business of torture or should be building kangaroo courts and violating the Constitution in order to save it,
seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.

Got that? Yes, it's true that if we let our system operate at its best, we will earn [and deserve, he doesn't say] the respect and approbation of the world. But a few lunatics will still hate us, so why bother?

Why bother, indeed? Why do things right if you can't subdue everyone else in the process? Why work with the world when the reward may not be total fealty? Why be a decent human being when there might not be total profit from it? Mukasey apparently did more than drink the Bush/Cheney kool aid. He mainlined it.

Or maybe he was a true believer from the start, which is perhaps even scarier.

Still, it's appropriate that we give Michael Mukasey a thank you for reminding us just how fragile our rights are, how ready we are to abandon them because they're inconvenient, and because honoring what's best in us might not make us successful tyrants.

The Constitution hangs by a thread. We should remember that. Thanks, Mike.


  1. While I agree with your conclusions in general, it's a shame that you didn't even list, much less address, the three strongest arguments for a "terrorist exception" to the Bill of Rights:

    1. Putting terror suspects on trial will force the soldiers and spies who tracked them down to reveal specifics (including sources and methods) in open court, thus not only harming our security agencies but also causing the intelligence agencies of allied countries (if they were involved) to stop cooperating with ours. This weakens national security. (My answer: issue clearances to judges and attorneys and ban people who can't qualify for clearances from being part of these cases in either role. Then allow the judge to hear that evidence at sidebar or in chambers and withhold it from the jury.)

    2. The terror suspect (assuming he's really a bad guy) may himself have learned about some of those sources and methods, and will pass them on to his associates upon release or maybe as soon as he's allowed to communicate with his family/friends/lawyer. (My answer: if true, this is sheer incompetence on the part of the agency involved and is its problem.)

    3. Members of the terror group who are still at large can intimidate jurors into acquitting their friends. (This happened frequently in IRA cases in Britain in the 1970s; eventually Britain changed their laws to eliminate the right to a jury trial in terror cases. My answer: the same, because there's no good alternative.)

  2. Blame Mukasey, not me. He didn't talk about them, either.

    My actual response, to your comments would be a whole post. Maybe one of these days.