09/17/2007 10:52 pm ET Updated May 25, 2011

Mukasey Will Suck (And He Hates Us)

Are we the only ones who are ready to retch at the constant stream of praise for the president's choice for attorney general? First of all, this is a guy who despises the legal left. Here's how he describes my organization, the Center for Constitutional Rights, in an opinion piece he wrote in The Wall Street Journal four weeks ago:

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees.

Here's the actual quote from CCR's President, Michael Ratner, speaking to Mother Jones:

Every time an attorney goes down there, it makes it that much harder to do what they're doing. You can't run an interrogation and torture camp with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there? Lawyers are down there to interview their clients, and statements ... are coming out on a weekly basis referring to sexual abuse, religious abuse, the use of dogs.

Mukasey's paraphrase is just a wee bit off -- he somehow missed that stopping torture was our goal -- but what's most amazing about this op-ed coming from a former federal judge is his absolute inability to comprehend that the men detained at Guantánamo just might possibly not be terrorists. Even the military isn't trying to bar lawyers from the base (they're just trying to make it exceedingly difficult for us to do our jobs).

In a piece published in 2004, when he was still a sitting judge, Mukasey showed similar contempt for the American Library Association's criticism of a PATRIOT Act provision allowing the FBI easier access to (inter alia) library patron's book-borrowing records:

First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely ... this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.

That settles it: these librarians must be traitors, and their opinions about the PATRIOT Act must be wrong. (Perhaps when Mukasey hears "American" in their organizational title, he thinks it means their charter is both continents, not the "United States." If so, that's very politically correct of him.) Elsewhere in his 2004 op-ed Mukasey accuses the left of having a "recreational" interest in making "hysteri[cal]" criticism of the PATRIOT Act. He just loves the legal left. Why are we so sure he won't, say, direct NSA surveillance at us?

Point 2: He is a guy who is obsessed with national security and views it as being diametrically opposed to civil rights. His recent WSJ op-ed advocated Congress creating a system of "preventative detention," essentially making permanent what several right-wing judges (including himself) decided to start on their own in a number of "enemy combatant" cases since 9/11: a system whereby the president can lock up anyone he chooses and never have to explain why to a court.

Take a look at my post from last Thursday for a fuller explanation of why this is so misguided, viewed purely from the standpoint of security. For 200 years we have insisted that judges demand explanation from the executive whenever it imprisons citizens, not only to protect the citizens' rights, but also because this ensures that the executive is doing its job -- catching the right guys. If Mukasey believes judicial review, open government, and probable cause requirements for detention and wiretapping are hindrances to law enforcement, then he is sorely unqualified to be the nation's top law enforcement official.

This brings me to Point 3: For someone who was a federal judge, he seems to have a very limited view of the role of the judiciary in enforcing the rule of law. Here's what he said in his 2004 op-ed:

[T]he built-in message -- the hidden message in the structure of the Constitution -- is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself -- and us -- alive.

If that's the meaning of the Constitution, it's, um, very well hidden. It's possibly the exact polar opposite of what the Founders would have wanted from the citizenry. They didn't trust anyone in positions of official power -- not even judges -- and they created a system of government that depends on that level of skepticism from all participants in order to function correctly.

One paragraph earlier, Mukasey -- then a sitting federal judge! -- did give voice to some contrarian skeptical thoughts:

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government -- God-given rights, no less, according to the Declaration of Independence -- then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

Wow. How many federal judges will say in public that the Bill of Rights was a bad idea because it made citizens trust their rulers less? In an extremely prescient piece published on Firedoglake on August 30th, a commentator on the AG vacancy predicted Mukasey would be Bush's choice (assuming that the WSJ op-ed was a job application of sorts), and made the following prediction about what Mukasey would be like as Attorney General:

I fear that a man of Mukasey's reputation and life experience would find it inconceivable that Bushco would hide information from him to manipulate him into going along with something nefarious or that they would try to use him as an unwitting "beard" for their next assault on the Constitution. Which is how they will be able to punk him, just like they did Ashcroft. He won't see it coming.

I fully expect him to get punked, and I suspect the liberals who support him will be as well.

So what are the supposed "pros" in favor of his confirmation? I count three in the commentary today:

* His handling of the Padilla case (or: "OMG we can has lawyurz!?"). In December 2002 he ruled that Jose Padilla, a United States citizen arrested inside the United States and not charged with any crime for three and a half years, had the right to see a lawyer. Before we award Mukasey the Nobel Peace Prize for his contributions to human liberty, consider this: he also said the president has authority to detain Padilla without charge as an "enemy combatant," giving early momentum to the notion that preventative detention of citizens, an obviously unconstitutional abomination, might actually be something we should take seriously. In another case, he approved the use of the material witness statute to jail people whenever the government claims it needs them to show up for grand jury testimony. (For you lawyers out there, the case is In re Material Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. 2002).) And one last thing: in Padilla's case, he allowed that "there is no reason that military personnel cannot monitor Padilla's contacts with counsel."

* Rebuilding the Department of Justice. In a Justice Department abandoned by scores of quality career civil service lawyers who were demoralized to the breaking point by the last six years, folks I respect believe he is the right man to undo the damage. Time will tell.

* He is smart. Ron Kuby, part of the aforementioned legal left, who defended El Sayyid Nosair before then-Judge Mukasey, had this to say to the AP:

"I think he'll make an excellent attorney general because now [that he's not a judge] he can proceed unencumbered by any sense of fair play or impartiality," ... Kuby said there are things he likes about Mukasey. He suspects the judge opposes the death penalty, and called him "one of the brighter bulbs on the bench -- he just used his incredible intelligence to distort the law."

Abstract intelligence will amount to nothing if you are not inclined to be intensely skeptical about the factual and logical assertions those around you are making. Just as our Constitution relies on federal judges maintaining both the appearance and reality of "fair play [and] impartiality," our system can only work well if attorney generals maintain a level of independence from the White House -- recall the Founders considered placing the Justice Department within the Judicial Branch to ensure it just such independence from the executive. I don't see many folks saying they think Mukasey will be an attorney general along the lines of Edward Levi or even Janet Reno in terms of independence in the administration of the law. (Will he be more independent than Alberto Gonzales? That I will concede.)

Of course, accountability and oversight -- whether to the law or to Congress -- is the opposite of what the White House is seeking here. I think the White House believes Mukasey will get confirmed pretty easily, and Schumer and the Democrats will trade off further Congressional inquiry on the U.S. attorney scandal and perhaps even on the warrantless NSA wiretapping scandal in exchange for the President not nominating another insider (Ted Olson) or a torturer (Larry Thompson). Will they at least refuse to hold hearings on Mukasey's confirmation until their subpoenas, heretofore ignored, are answered?

--September 17, 2007