The Two Faces of Michael Mukasey

Michael Mukasey: Then and now

To promote his partisan fear-mongering attacks, the former Judge invokes the very arguments he once scorned

Glenn Greenwald

Former Bush Attorney General Michael Mukasey has become the leading spokesman for a Cheneyite national security attack, which relies on scaring Americans into believing that Obama is endangering their lives in those rare instances when he deviates from Bush’s Terrorism approach.  Toward that end, Mukasey has yet another fear-mongering Op-Ed, this time on today’s oh-so-liberal Washington Post Op-Ed Page (along side Michael Gerson’s stirring tribute to the virtues of GITMO, Bill Kristol’s call for regime change in Iran, a warning from Blackstone Chairman Steven Schwarzman to stop being so mean to banks, and a Charles Krauthammer column blaming Obama for something or other).  Mukasey specifically accuses the Obama administration of losing valuable intelligence by allowing Abdudlmutallab access to a lawyer, and insists that the accused Christmas Day bomber had no constitutional rights because — despite his being detained in the U.S. — he is merely an “enemy combatant.” 

But when Mukasey was a federal judge, he made the opposite arguments.  In 2002, the Bush administration detained Jose Padilla at Chicago’s O’Hare Airport, publicly labeled him The Dirty Bomber, declared him an “enemy combatant,” transferred him to military custody, and refused to charge him or even to allow him access to a lawyer.  When a lawsuit was brought on Padilla’s behalf, Mukasey was the assigned judge, and he ordered the Bush administration to allow Padilla access to a lawyer.  When the Bush administration dithered and basically refused (asking Mukasey to reconsider), Mukasey issued a lengthy Opinion and Order threatening to impose the conditions himself and explaining that Padilla’s constitutional right to a lawyer was clear and nonnegotiable.  So resounding was Mukasey’s defense of Padilla’s right to a lawyer that, when he was initially nominated as Attorney General, many anti-Bush legal analysts — including me — cited Mukasey’s ruling in Padilla to argue that he was one of the better choices given the other right-wing alternatives.  Indeed, I analyzed his decision in Padilla at length to argue that, at least in that case, Mukasey “displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power,” and that he “was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the Terrorists.” 

What’s most striking is that, in the Padilla case, Mukasey emphatically rejected the very arguments he is now making to attack Obama.  The Bush DOJ repeatedly insisted that Mukasey — by allowing Padilla access to a lawyer — would destroy their ability to interrogate him and obtain life-saving intelligence, thus endangering all Americans.  As Mukasey put it:  the Bush DOJ is “none too subtle in cautioning this court against going too far in the protection of this detainee’s rights, suggesting at one point that permitting Padilla to consult with a lawyer ‘risks that plans for future attacks will go undetected‘.”  Incredibly, that argument — which Mukasey decisively rejected back then — is exactly the one he’s now making against Obama.  Listen to what the Bush administration told Mukasey in demanding that he withdraw his order directing that Padilla be given access to a lawyer — this is what Mukasey quoted from a Bush DOJ brief and refused to embrace back then: 

DIA’s approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and the interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of [redacted]. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began. 

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example — even if only for a limited duration or for a specific purpose — can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process. . . .
 

Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. . . . Any such delay in Padilla’s case risks that plans for future attacks will go undetected during that period, and that whatever information Padilla may eventually provide will be outdated and more difficult to corroborate. 

 

Mukasey dismissed all of those fear-mongering claims as speculative hyperbole, and explicitly told the Bush DOJ:  “if the government had permitted Padilla to consult with counsel at the outset, this matter would have been long since decided in this court” — i.e., Mukasey told the Bush DOJ that the dilemma was its own doing because it should have allowed Padilla access to counsel from the start.  Yet in order to try to convince Americans now that Obama is endangering their lives by allowing Abdulmutallab access to counsel, Mukasey resorts to the very fear-mongering that he long ago rejected.  That’s called being a dishonest hack of the lowest order. 

More dishonestly still, Mukasey in today’s Op-Ed claims that he ordered Padilla to have access to counsel only “as a convenience to the court and not for any constitutionally based reason,” and only because Padilla (unlike Abdulmutallab) was a U.S. citizen.  Both of those excuses are blatantly and demonstrably false.  The whole legal basis for Mukasey’s ruling was that (1) he would order Padilla to have access to counsel even if he had believed Bush’s fear-mongering claims because Padilla had a constitutional right to counsel; and (2) the basis for that right is not that Padilla is a citizen, but rather, that all “persons” on U.S. soil have that right.  Just listen to what the Mukasey back then said in order to see how blatantly dishonest the Mukasey of today is (emphasis added): 

Even if the predictions [of the Bush DOJ] were reliably more certain than they in fact are, I would not be free simply to take the counsel of Admiral Jacoby’s fears, however well founded and sincere, and on that basis alone deny Padilla access to a lawyer. There is no dispute that Padilla has the right to bring this petition, and, for the reasons set forth in the Opinion, the statute makes it plain that he has the right to present facts if he chooses to do so. . . . 

Arbitrary deprivation of liberty violates the Due Process Clause, Foucha v. Louisiana, 504 U.S. 71, 80 (1992), which “applies to all ‘persons’ within the United States,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). . . . [U]nless he has the opportunity to make a submission, this court cannot do what the applicable statutes and the Due Process Clause require it to do: confirm what frankly appears likely from the Mobbs Declaration but cannot be certain if based only on the Mobbs Declaration — that Padilla’s detention is not arbitrary, and that, because his detention is not arbitrary, the President is exercising a power vouchsafed to him by the Constitution. . . . 

The Court in Hamdi took pains to point out that its holding was limited to “the specific context before us — that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces.” Hamdi, 316 F.3d at 465.  That wise restraint is well worth following in this case by recognizing explicitly the limits of the current holding, and thereby recognizing as well the contrast between this case and Hamdi. Unlike Hamdi, Padilla was detained in this country, and initially by law enforcement officers pursuant to a material witness warrant. He was not captured on a foreign battlefield by soldiers in combat. The prospect of courts second-guessing battlefield decisions, which they have resolutely refused to do, e.g., id. at 474; cf. Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977), does not loom in this case. 

 

It’s true that this decision did not address the question of Miranda warnings, but the point is that Mukasey’s reasoning there directly negates what he is now arguing.  Based on those two findings — that (1) there was no clear evidence that allowing access to a lawyer would jeopardize intelligence-gathering and, even if there were, it wouldn’t matter, because (2) Padilla, as someone detained on U.S. soil., had a constitutional right to a lawyer — Mukasey ordered the Bush DOJ to comply with his directive in unusually strong language: 

Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further “dialogue” about whether he will be permitted to do so. It is a ruling — a determination — that he will be permitted to do so. 

 

Note, too, that Mukasey insisted that courts have the constitutional obligation to ensure that presidential-ordered detentions “are not arbitrary,” a claim both the Bush administration and now the Obama administration, in some circumstances, vigorously contests. 

This entire Miranda/Abdulmutallab controversy has been rife with deliberate misconceptions from the start: 

• the inane notion that super-dangerous Terrorists innocently believe that they’re required to spill their guts if they aren’t given Miranda warnings (recall that the premise of Bush officials, including Mukasey, is that Terrorists are so hardened and Evil that they have to be tortured to get them to speak; the very idea that they would feel compelled to answer all questions unless told they did not have to is laughable on its face);
• the empirically false claim that defendants stop co-operating — and that interrogations must stop — once they are Mirandized (huge amounts of co-operation from the accused occur once they’ve been Mirandized and have lawyers);
• the invented allegation that Abdulmutallab was speaking freely until he was Mirandized, at which point he stopped talking;
• the obviously misleading suggestion that it’s easier to interrogate and convict Terrorists in a military commission system than in civilian courts (the exact opposite has been true, by far); and,
• the dishonest implication that we somehow lost something by Mirandizing and trying Richard Reid in our civilian court system, which sentenced him to life in prison with little effort, in contrast to the debacles produced by the military commission system).  

 

The ignorance of media stars about these issues allows fear-mongering politicians to make these claims over and over without challenge (although see Savannah Guthrie’s impressively aggressive, well-informed and effective interrogation of Sen. Kit Bond about this case: it’s the exception that proves the rule, and illustrates what effective adversarial journalism can accomplish).  And much of this is the fault of the Obama administration:  because they themselves have embraced the Bush/Cheney policies of military commissions and indefinite detentions, they’re incapable of articulating any coherent principle why civilian trials are needed, and are instead reduced to the pitiful spectacle of relying on a “Bush-did-it-too” defense to try to show that they’re sufficiently “tough on Terror” (as though the same administration which Obama spent two years depicting as radical, destructive and lawless is the standard-bearer for how Terrorists should be handled). 

Still, Mukasey’s dishonesty is worse than the standard political/media freak show, both because he knows better and because (as a judge) he renounced the very myths which (as a hardened right-wing partisan) he is now disseminating.  He has become a leading practitioner of the hysterical fear-mongering he once rightly scorned. 

* * * * *  

Long-time commenter DCLaw1 has rejuvinated his excellent blog, InsideOutTheBeltway, and has a typically insightful post on how the media has re-cycled blatant myths — grounded in sheer ignorance — about Miranda and Abdulmutallab. 

 

No, Mr. Walt, The Iraq War is Bush’s Fault, Not Israel’s

Rinse, Wash, Repeat

John B. Judis

For the last time, Stephen Walt, Israel did not send the U.S. and Britain into Iraq.

I don’t think anyone would mistake me for a big fan of the American Israel Public Affairs Committee (AIPAC), the main (as they put it) “pro-Israel” lobby in Washington. The only organization of that kind that I’ve ever given money to is Americans for Peace Now. And I have defended critics of AIPAC, including Stephen Walt and John Mearsheimer, the authors of The Israel Lobby, from charges of anti-Semitism. But I think Walt and Mearsheimer have been dead wrong in trying to blame the Israel lobby or the Israeli government for America’s invasion of Iraq. And now Walt is repeating the same nonsense.

Walt, who blogs for Foreign Policy’s website, recently revived the argument, claiming in a self-congratulatory column titled “I don’t mean to say I told you so, but…” that Tony Blair’s testimony last month before Britain’s Iraq War Commission confirmed that “the Israel lobby … played a key role in the decision to invade Iraq in 2003.” I have read Blair’s testimony. I don’t find it to be proof of anything of the kind; and I don’t think Walt’s accompanying restatement of the argument is any more persuasive than the version he and Mearsheimer put forward in his book.

Walt says that Blair’s statement to the commission “reveals that concerns about Israel were part of the equation [that is, the decision to go to war] and that Israel officials were involved in those discussions.” Here is what Walt, citing a column in the New Statesman, quotes Blair as saying about his early April 2002 meeting in Crawford, Texas, with George W. Bush:

As I recall that discussion, it was less to do with specifics about what we were going to do on Iraq or, indeed, the Middle East, because the Israel issue was a big, big issue at the time. I think, in fact, I remember, actually, there may have been conversations that we had even with Israelis, the two of us, whilst we were there. So that was a major part of all this.

Now there are at least three problems with the inferences that Walt draws from this statement. First, even if we were to grant that Blair is saying that he and Bush were talking about Israel’s role in or importance to the Iraq invasion, this certainly does not show that the Israel lobby had anything to do with the decision to go to war. Nor, secondly, does it show that the Israeli government pressured the U.S. to go to war. The “conversations” could have easily consisted of the Bush administration informing Israelis of their plans.

But these are minor objections. The real problem is that Walt does not seem to have taken the trouble to have read the transcript of Blair’s testimony. If he had, he would have realized that Blair was not talking about how invading Iraq might benefit Israel, but about the conflict then occurring between Israel and the Palestinians. The second intifada had reached a new height with the Passover and Haifa suicide bombings and the beginning of the siege at the Church of the Nativity in Bethlehem, and Blair was concerned that the Bush administration was not actively pursuing the peace process. Blair wanted the administration to put the Arab-Israeli issue on a par with the threat of Iraq. The former prime minister makes this clear in other parts of his testimony. Here is an exchange between Blair and Sir Roderic Lyne:

Lyne: … Just one more point arising from Crawford, but not just from Crawford. You said–you reminded us that the Arab-Israel problem was in a very hot state at Crawford. You said you may even have had some conversations with Israelis from there, and obviously it was something that was a large part of your conversations with President Bush. I think it is right to say–indeed, Jack Straw said it–that you were relentless in trying to persuade the Americans to make more and faster progress on the Middle East peace process. Ultimately, Jack Straw said it was a matter of huge–in his evidence the other day–it was a matter of huge frustration that we weren’t able to achieve something which you had been seeking so strongly …

Blair: … I believe that resolving the Middle East–this is what I work on now–is immensely important, and I think it was difficult, and this is something I have said before on several occasions, it was difficult to persuade President Bush, and, indeed, America actually, that this was such a fundamental question …

Lyne: But surely you must have said to him, “Look, this thing is only really going to have a chance of working well if we can make this progress down the Arab-Israel track before we get there”?

Blair: Well, I was certainly saying to him, “I think this is vital,” and I mean, this was–you could describe me as a broken record through that period …

The talks at Crawford and subsequent discussions led eventually to getting Bush to launch the “road map” for peace. In other words, he and Bush were not saying that they had to invade Iraq to assist or appease the Israelis. Nothing that Blair said in his testimony should have provided the slightest evidence that this was occurring. And it seems clear enough that the discussions Blair and Bush had with the Israelis were not about Iraq but about the peace process.

I am sorry to say that this kind of sloppy research and reasoning is typical of the way that Walt and Mearsheimer deal with the question of whether the Israel lobby influenced the decision to go to war. In their book, they claim that the U.S. would “almost certainly” not have gone to war without the influence of the Israel lobby. That’s a very strong claim, but they do not back it up either in the book or in Walt’s current blogging. Let me briefly deal with their logic here.

There are three ways in which the Israel lobby could have made itself indispensable to the decision to go to war: first, in White House-Pentagon deliberations; second, in significantly influencing the critical Congressional vote in October 2002; and third, in dramatically shaping public opinion. Their argument falls short on all these counts.

White House: To contend that the “Israel lobby” influenced the White House decision to invade—which had more or less been made by the spring of 2002 when Blair visited Crawford—Walt and Mearsheimer expand the “lobby” to include “neoconservative intellectuals” such as Paul Wolfowitz, the Deputy Secretary of Defense. They then imply that Wolfowitz and other neo-conservatives favored regime change in Iraq primarily because it would benefit Israel.  No evidence has surfaced to show that Wolfowitz was acting in this manner.  There were other neo-conservatives in the administration – such as David Wurmser and Douglas Feith – who had in the past explicitly linked regime change in Iraq to Israel’s welfare, but they were not in a decision-making capacity. Indeed, the two people outside of the President who appear most responsible for the decision to invade — Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney — could not be categorized, even by Walt and Mearsheimer’s absurdly broad standards, as part of an Israel lobby.  So while it would be foolish to rule out that Israel’s welfare was not discussed or mentioned in discussions about whether to invade Iraq, there is no basis for saying that the White House decision to invade Iraq was driven by neo-conservative preoccupations with Israel’s security.

Congress: Walt cites my quoting of AIPAC head Howard Kohr’s boast that AIPAC had been “quietly lobbying” Congress to pass the war resolution in October 2002. I don’t doubt that AIPAC officials favored going to war, as did the leaders of some other pro-Israel organizations. But AIPAC did not aggressively lobby for the war resolution the way it lobbied in 1981 against the AWACs surveillance plane sale to Saudi Arabia or recently for refined petroleum sanctions on Iran. I have interviewed AIPAC people and members of other Jewish lobbying organizations on this question, and they say the same thing. It was not a make-or-break legislative priority. And there is very good circumstantial evidence to back this up. Some of AIPAC’s most dependable supporters on the Hill—such as Senators Daniel Inouye and Carl Levin and Representative Jerrold Nadler—opposed the resolution. So, yes, AIPAC probably did “quietly” make its preference known; but it can’t be credited or blamed for the outcome of the vote. And no other pro-Israel or Jewish lobby possesses comparable clout on the Hill.

Public Opinion: Did the Israel lobby have a sine qua non influence on public opinion in favor of the war? If so, one would expect that its influence would at least show up among Jewish Americans, who would be most likely to listen to their arguments. In a 2003 survey, the American Jewish Committee found that 54 percent of Jewish Americans disapproved of going to war with Iraq and only 43 percent approved. At the time, a majority of Americans approved of going to war. So, far from being a leader in pro-war sentiment, American Jews were lagging behind. Walt and Mearsheimer concede this point, but it’s important nonetheless to include it because it is the only other way in which the Israel lobby might have had a decisive effect on the decision to invade, but did not.  

There is, in other words, no basis at all for accepting Walt and Mearsheimer’s contention that, without the Israel lobby, the U.S. would likely not have invaded Iraq.  It’s not anti-Semitic to make these charges–they have quotes and anecdotes in their book–but they don’t add up to the proof of any overriding influence. Nor does Walt’s use of Blair’s testimony to the Iraq War Commission. I think it’s time for Walt and Mearsheimer to put this part of their argument to rest.