Mukasey’s Muddle

Say what you will about Michael Mukasey, but usually he can craft a fairly logical argument.

That’s not, however, true of this muddled op-ed in the WSJ. The op-ed attempts to draw an equivalence between lawyers–but not civil liberties organizations–that have represented Gitmo detainees and Yoo and Bybee (and, by association, though he doesn’t admit it, Michael Mukasey). But the muddle that results demonstrates as well as anything how conflicted and illogical Mukasey’s own position is.

Mukasey starts by asserting a parallel between three different sets of lawyers:

  • Bernie Madoff’s lawyer
  • Yoo and Bybee “for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture”
  • Lawyers in private practice who represented detainees and “have been portrayed as in-house counsel to al Qaeda”

Now, Mukasey misrepresents why Yoo and Bybee are being attacked. It’s not because of the legal positions they took, it’s because of the process by which they purportedly came to those opinions.

But look how quickly claiming a parallel between these three groups of lawyers–two engaged in antagonistic proceedings, the third not–to this step.

A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

Mukasey moves from legal representation of a client to–in Mukasey’s own words–“authoriz[ing] any step or practice the law permits … to keep the nation … safe.” Mukasey is now saying that Yoo and Bybee authorized torture, rather than analyzing statutes such that their client (whoever Mukasey wants to claim that is, because it changes) can authorize torture, based on Yoo’s legal advice. (Note, as AG, Mukasey may well have authorized such things, but the arguments folks have made to defend Yoo all presume he didn’t do the actual authorization, which would suggest he made the policy decision.)

And never mind the unquestioned assumption that lawyers are obligated to do this “in order to keep the nation … safe,” suggesting that the purported efficacy of the torture somehow changed the legal obligations involved.

In other words, these are not at all parallel cases. One is protecting the law, the process of the law. The other is claiming to protect the country, with a pretty twisted definition of the role of the lawyers involved.

From there, after Mukasey makes another false parallel–suggesting those opposing Yoo and Bybee are equally motivated by politics as those attacking lawyers who represent detainees–Mukasey sees fit to tell SCOTUS that it got several rulings wrong.

I think the Supreme Court decided wrongly in several key cases regarding the war on terror and our national security. They include Boumediene v. Bush (2008), in which the Court found insufficient protection for Guantanamo detainees that had not yet been put to the test, and Hamdan v. Rumsfeld (2006), in which the Court applied to detainees a provision of the Geneva Conventions that was intended to apply only in civil wars on the territory of a signatory to those Conventions. While I disagree with the Court’s decision in these cases, I stop well short of blaming the outcome on lawyers who argued successfully.

Again, what happened to legal process here? Yes, Mukasey notes that the lawyers who argued their case successfully here are not to blame. But what’s with the insinuation that anyone is to blame? Even former Attorneys General don’t get to make their own law, though it sure sounds like Mukasey wants to.

Then Mukasey makes this veiled attack on civil liberties organizations.

I agree that lawyers who, like the head of one self-described public interest organization, threaten to achieve their desired outcomes by overwhelming the courts with thousands of lawsuits in behalf of detainees, or those who adopt publicly the agendas of their clients, deserve every bit of condemnation they get.

Because while Mukasey is allowed to disagree with settled law, some organizations are not allowed to use the process of law in this country to argue for the rule of law.

And here’s perhaps the funniest paragraph in this confused op-ed.

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility—whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

“It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility.” Note the example Mukasey doesn’t mention in his list of those who might bring a bias to their job as a government lawyer? Those who–as most people who commented on the OPR Report concluded had happened–bring radical notions of executive power into the OLC and apply those notions to questions of torture. Even the most conservative commenters on the OPR Report agree that Yoo has fairly radical views about Commander-in-Chief authority. In fact, that’s the means by which Yoo apologists excused the obviously flawed process by which he wrote the memos. If John Yoo really believes no laws can limit the President, Yoo defenders argued, then he can’t be faulted for the Bybee Memo. But Mukasey, in theory at least, says he can.

And the notion that Congress should have the power to exercise oversight over these government lawyers? That is coming from Michael Mukasey who, as Attorney General, repeatedly refused to give Congress these OLC memos, which would have been the first step to them exercising oversight over a government lawyer whose bias had tainted his work.

Now, I’m happy that Mukasey has joined the long list of people opposing Liz “BabyDick” Cheney’s McCarthyism. But even using his own logic here, Yoo’s embrace of torture was legally problematic.

Not to mention Mukasey’s own role in–among other things–preventing the kind of Congressional oversight Mukasey himself admits needs to happen.

Update: David Luban takes issue with Mukasey’s false equivalency, too.

But in fact, the parallel is completely bogus. What makes the Cheney attacks McCarthyism is guilt by association, wrapped in innuendo, and cynically appealing to paranoia: Because you represented a detainee, you very likely sympathize with Al Qaeda, and we need to smoke you out.
Nobody ever criticized the torture lawyers because of who they represented, and nobody questioned their loyalty. The criticisms were on three completely different grounds: first, that they made frivolous arguments to get around the law; second, that they violated their ethical and constitutional obligation to give candid, independent advice to the president; and third, that they facilitated a misbegotten plan to torture captives. My own writing focused on the first two arguments; other critics focused on the third. Obviously, many people reject these criticisms on the merits, but that isn’t the point. Whether the criticisms are right or wrong, they don’t traffic in guilt by association, they don’t blame lawyers for who their clients are, and they don’t hint at treason.
There is simply no parallel between criticizing lawyers for violating the law and assassinating their characters for representing the “wrong” clients. (To be clear: I am not objecting to Mukasey’s defense of the current DOJ lawyers. His willingness to put his considerable authority on the line deserves applause. I’m objecting only to his “moral equivalence” argument.)
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37 replies
  1. WilliamOckham says:

    When Mukasey says:

    the Court applied to detainees a provision of the Geneva Conventions that was intended to apply only in civil wars on the territory of a signatory to those Conventions.

    He’s lying and he knows he’s lying. He’s too smart and too knowledgable to believe that BS.

  2. bmaz says:

    A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

    First off, I think Mukasey is mendaciously ignoring both the model rules and internal governmental standards for conduct and advice of a governmental lawyer in an advisory role. But notwithstanding that, there is a huge difference between “authorize any step or practice the law permits” and twisting and contorting some existing law in ways clearly not designed and ignoring other basic root precedent and law in order to achieve a desired illegal result.

  3. scribe says:

    When he talks about “Congress using its oversight”, that’s dogwhistle for “Republicans blocking the nominees of Democratic presidents”.

    And the whole thing about political agendas is dogwhistle for “don’t criminalize policy differences”.

    And the “no agenda to their jobs” thing is dogwhistle for “we seek convictions not justice and if you don’t, you don’t belong here.” Conservatives don’t have an agenda, because they are the repositories of revealed Truth and are merely bringing it into manifestation, you know.

    The only commonalities between the three groups of people he discusses are that they graduated from accredited law schools, passed a bar exam, and call themselves lawyers. The Yoos, Mukaseys, Gonzaleses and Addingtons of this world are the worst kind of lawyers: The kind who use law as an instrument against itself.

  4. Mary says:

    Ya know, one of the biggest differences is Bin Laden didn’t go to any of these lawyers and ask for a legal opinion to allow him to engage in depravity with no consequences.

    No lawyer conspired with al-Qaeda in structuring its criminal acts. If they did – they need to go to jail as co-conspirators.

  5. Mary says:

    You’re right about the funniest part EW – didn’t he leave something out?

    It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility—whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States[,or prosecution of Presidents and Executive branch members who believe that it’s not illegal if the Executive branch oks it.]

    • emptywheel says:

      Right. Bradbury says the problem is that Yoo has views outside of the mainstream, not that the process was wrong. But under that logic, he shouldn’t have been where he was.

  6. scribe says:

    OT a bit. The other day there was a news item about a law school which could not get its graduates eligible to take a particular state’s bar exam. This ineligibility was because the law school was not accredited by the ABA. The state bar required candidates for the exam to have graduated from an ABA accredited law school. Such accreditation requires that the law school grant tenure to professors (after they jump through the usual hoops), and this law school was recently established and does not grant tenure – part of their deal with the professors, actually.

    So, as to Yoo and his tenure, graduates of that school would not be able to take many states’ bar exams if the school didn’t have ABA accreditation and no tenure for faculty would foreclose that. Since that school fancies itself a “national” school, that just would not do.

  7. bobschacht says:

    …A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

    Mukasey moves from legal representation of a client to–in Mukasey’s own words–”authoriz[ing] any step or practice the law permits … to keep the nation … safe.” Mukasey is now saying that Yoo and Bybee authorized torture, rather than analyzing statutes such that their client (whoever Mukasey wants to claim that is, because it changes) can authorize torture, based on Yoo’s legal advice. …

    And never mind the unquestioned assumption that lawyers are obligated to do this “in order to keep the nation … safe,” suggesting that the purported efficacy of the torture somehow changed the legal obligations involved.

    This is a canard that politicians in general and Executive wing officials keep repeating, and which really needs to be put in proper perspective. All of these officials, IIRC, take an oath of office to preserve and protect the Constitution of the United States. Clearly, Mukasey’s arguments subordinate that oath to “keeping us safe”.

    Just total up the number of times in the past year that you have heard “keeping us safe” cited as the Prime Directive, versus the number of times you have heard *anyone* cite defending and protecting the Constitution as the primary motivation for their action. The ratio is tilted in the wrong direction.

    Bob in AZ

  8. earlofhuntingdon says:

    A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

    Where does one start? Being an advocate for a private litigant and holding a position of public trust are not comparable jobs. They impose fundamentally different obligations on a lawyer. Michael Mukasey barely touches the surface of those differences, and only touches the point he wishes to make, which is a political, not legal one.

    The public service lawyer’s job is not “to keep the nation and its citizens safe”. That’s the work and responsibility of his or her political patrons, just as a ship’s fire control party’s job is to put out fires, while another team’s job is to fire its guns or missiles and yet another team’s job to direct the ship’s course. Each team must focus exclusively on its own job – not the other guy’s. If they don’t and thereby fail at their own job, they imperil the ship, its mission and its personnel.

    The OLC lawyer’s job is to know and understand arcane areas of the law and to give their best, informed read about what it permits – and about what it prohibits. That includes being clear when the law has gaps, which is not a license to do “whatever” one’s political patrons demand. It’s a vacuum that has to be filled with the law most closely on point until Congress or the executive properly fills that gap through legal means. Sometimes doing that job means saying, “No” in unequivocal terms. Ask Archibald Cox.

    Of course, there are intense pressures from circumstances and politicians. Of course, that work requires creativity as well as discipline. It does not require, it is directly harmed when lawyers ignore the laws and precedents they have spent decades demonstrating to the academy that they know better than their peers and weave new laws or rules out of the thin air of their extreme political views. That’s what Michael Mukasey is enabling. His support for it then is support for doing it again.

    • earlofhuntingdon says:

      Mukasey also artfully ignores Bybee’s poor management and Yoo’s blatant insubordination and bad lawyering.

      • emptywheel says:

        To be fair, OPR didn’t go after that that much (partly because it would open up some really big cans of worms, I expect). But that’s part of the point about process.

        I just re-read Mukasey’s response, and he basically says, “If Yoo had changed included the CiC section bc Addington told him to, that would be very serious indeed. But we don’t think you’ve got evidence for that so we’ll just assume he genuinely believes duly passed laws cannot limit the President.”

        But don’t worry–that’s not one of the biases we should worry about lawyers bringing to DOJ positions.

        • earlofhuntingdon says:

          Yoo’s position about no laws limiting the president isn’t lawyering, though, its politicking and throwing the law and the legitimate role of the lawyer down a rat hole. No canon law can bind the pope, no bureaucratic tradition can bind a Confucian emperor, no Constitution or legislation can bind el Presidente.

          How much lawyerly “good faith” can there be when one’s mission is to allow the executive to ignore a Constitution one knows well enough to teach it at a university almost as good as Big Blue?

    • Mary says:

      A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

      Where does one start?

      Maybe with something like this:

      Authorizing Executive torture programs for the opportunistic facilitation of war has caused loss of American life and has horrifically and tremendously endangered America’s security. Public service lawyers – particularly those dealing with national security – have an obligation to take every step allowed by law to keep the nation and its citizens safe against those who authorized and implemented such programs.

  9. earlofhuntingdon says:

    Mukasey demonstrates John Roberts’ like contempt for the law and precedent and continues to advocate for unfettered executive action as the “law” of the land. Does he tell his corporate clients that their will ought to be law – or a sufficient substitute for it – and that they should do what they want anyway, SEC, IRS, contracts, products liability and the criminal law be damned? Now that would be parallel behavior.

  10. Jeff Kaye says:

    Re Mukasey’s plea for the overarching plea for keeping citizen’s safe, when will we begin to bear arguments for the quartering of soldiers in people’s homes, the better to “protect” them.

    I believe the Constitution was written with the understanding that encroachments upon personal liberty and safety by the State was one of the greatest dangers a citizenry could face.

    • tjbs says:

      Jeff,
      I had a fine professor in collage who encouraged us to look upon the constitution as the contract between the citizens and those who are in their employ, the government. It was written after witnessing the abuses of the absolute power of a king. Kidnapping, Torture, Murder were the usual suspects.

      K. Ward impressed upon us the founders wrote down in the constitution , in bright lines, this far and no farther, Period. We have lost that fidelity to the constitution, if in fact it ever was fully embraced.
      I notice the government is younger and therefore more gullible than past generations, like the Roberts The Supreme Supreme.

      What to do, how to get back or ahead is a damn good question.

  11. Leen says:

    Crafty Mukasey Mukasey

    Mukasey on Waterboarding. “I am unwilling”

    Mukasey being crafty “if it amounts to torture it is not constitutional”

    Crafty Mukasey
    Mukasey Refuses to Say Yoo 4th Amendment Memo Withdrawn

  12. earlofhuntingdon says:

    Mukasey’s lede is that he purports to defend Gitmo lawyers and others who represent social undesirables. As others have said, those cases are the ones that make great laws and define our legal system. With that emotional hook, he tries to make Yoo and Bybee victims as he also tries to shoehorn them into a category that includes a fictional Atticus Finch and the real lawyers that defend Gitmo detainees.

    To be fair, there are distinctions to be made when it comes to the courage of defense lawyers. It can be much easier and take less courage to defend the well-paid or the politically connected – mob bosses, Enron, Monsanto and Blackwater executives, former politicians – then to defend the poor, immigrants, and the politically or socially undesirable for little or no money.

    As you say, this is Mukasey defending himself as much as lawyers from his old agency, with whom he shares a closet with many skeletons.

    The one thing Michael Mukasey is not defending is due process: the requirement that the government always be made to prove its case, especially when “everybody knows” the guy did it.

  13. Teddy Partridge says:

    Thanks, Chuck.
    Thanks, Dianne.

    But for you two, this douchenozzle anti-constitutionalist would just be a retired federal judge. Getting to call himself “former Attorney General” is all on Schumer and Feinstein.

    • JTMinIA says:

      Yeah, that third video linked-to by Leen says it all. DiFi knew she wasn’t getting an answer to her question, but played along as if she had, even when Mukasay couldn’t keep his mouth shut and almost ruined the game. The contrast with the Whitehouse video is so stark. Made me sick all over again.

  14. Citizen92 says:

    One of Frontline’s documentaries tells us that, on 9/11, the White House called over to DOJ. And John Yoo just happened to be on “emergency duty.” From then on, the match was made.

    Bunk?

  15. Leen says:

    ot whoa incredible interview with Rachel Corrie’s parents before they went off to Israel to pursue justice. They are suing the Israeli government for Rachel being crushed to death. Israel is trying to block the first doctor who examined Rachel’s dead body who is a Palestinian and lives in the Gaza from testifying at the trial.

    One hour with Amy Goodman and Rachels parents

    Listening now
    “Rachel was crushed to death”
    Rachel’s parents suing the Israeli Government for killing their daughter

    7 Years After Killing, Family of Slain US Peace Activist Rachel Corrie Heads to Israel for Wrongful Death Suit Against Israeli Gov’t

    http://www.democracynow.org/

    • Leen says:

      Holy mackerel

      Rachel hit it out of the ball park again

      “Frakt: Well, as it turned out, he wasn’t a member of al-Qaida, or even the Taliban. In fact, he wasn’t a terrorist at all. He didn’t even know any terrorists! The only real consolation with Mohammed was that the United States had tortured him, so I was able to exploit that for substantial propaganda value, but otherwise, he was a dud.

      Maddow: What happened to him?

      Frakt: Unfortunately, after I proved that his confession was the product of torture and that he was innocent, he was ordered released by a federal judge. I’m pretty sure she is a terrorist sympathizer as well. In fact, your viewers may be interested to learn that all the judges on the Federal District Court bench in Washington are part of one big al-Qaida sleeper cell.”

  16. JohnLopresti says:

    The exAG*s remarks are another Mukasey comedic routine, like the children*s game in which the leader tries to fool the other children in an imitation challenge for the kids* cognitive powers; do as I say, not as I do. His nomination testimony, his BCLaw 2008 commencement speech, his hack politics defending torture program design are from the same fabric. He will identify the problem, state the principles for understanding, then he jumps to political mode, leaving the entire knot of contradictions for his idealistic successors to resolve. The controversy at the 2008 graduation was so palpable the dean retired the award which speakers in past events had received. Scotus* associate justice Breyer was one of the last to receive the award. The dean silenced many critics by refusing to let Mukasey receive the token gift, but stifled tradition by doing away with the founders* award altogether for future BCLaw commencement speakers as well. Luban today at balkinization is fairly lucid on Mukasey*s nonsequiturs in wsj pleas to honor the new torture paradigm. At bc, Mukasey quoted lots of the law of admiralty*s proponent*s ideas; Mukasey*s ruminations asked young minds to consider…**how close to those legal lines we should go, and whether the lines themselves should be redrawn**. It sounds so flexible, but his reasoning is obdurate. I guess some young graduates foresaw the banality, which is why they swapped the $35.00 rented cap and gown garb for orange jumpsuits and black hood mask. The Boston paper ended its coverage with a cite from a young lady who was graduating, reflecting on Mukasey*s muted and abbreviated remarks: **The message I heard is that being a lawyer is regurgitating the law,** she said. **That*s not what you expect to hear at a first-rate law school. Our calling is much higher.**

  17. bobschacht says:

    fatster @ 26,

    Good! The more statements by international officials like this, the better. Anything to get some action to deal with this infamy.

    Bob in AZ

  18. bgrothus says:

    “A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.”

    Tenable? So these people, appearing in a courtroom in front of judge and jury must use “tenable” arguments. Not twist the law to defend their client, nor do any other “untenable” illegal stuff.

    And in the public sphere we must have lawyers who are “obligated” to “authorize” anything the law “permits.” Even, perhaps more so if it is or is not “tenable.”

    Honestly, how can he even try to create equivalency here? There is no relationship between the practice of law under the Constitution and the crafting of legal “tenancy” when the latter intends to redefine the Constitution.

    We rubes have the idea that the Constitution is to be upheld. Mukasey finds it untenable that we might also have an expectation that administration lawyers have an obligation to uphold the Constitution. The President is dead, long live the President.

  19. orionATL says:

    tjbs @33

    this is an absolutely vital HISTORY message for our times.

    our constitution and its bill of rights did not arise out of theorizing and scenario planning;

    it arose out of contemporary experience and close historical knowledge of unchecked government
    power,

    just the kind of monarchial power that david addington and the federalist society are attempting to reimpose on our nation.

    the federalist society, david addington, and dick cheney are, whether they know it or not, attempting to reverse all the protectionsfor individual citizens against a totalitarian state that the signers of the constitition worked so hard to put in place via the first ten amendments to the constitution.

    this issue is very straightforward. it simply needs repeating over and over.

  20. lysias says:

    I’m not sure how off topic that is. I wonder to what extent Mukasey adopts his positions because he thinks they’re necessary in order to defend things Israel is doing.

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