Do I Really Have To Be The One?

Signaling that he doesn’t want to have to get steeped in a confirmation battle, President George Bush has chosen to nominate retired judge Michael Mukasey to the position of Attorney General. Mukasey, who has been championed by New York Senator Chuck Schumer for years now, looks to be the penultimate consensus candidate, and from what I’ve skimmed thus far, it doesn’t look like there will be much blowback even among the left within the blogosphere.

Do I really have to be the one to say something against this guy?

Legalese is by far not my milieu, I never even took minor criminal law classes in the little bit of college I did attend. So I’ll be dead honest here and say that I don’t get most of the information available about him. Further, I suppose it is at least some progress that Mukasey is both competent and professional, which makes him infinitely more qualified than his predacessor was.

But at what point has the standard been dropped so low that one needs be only competent and professional? That should be the standard for any position above entry level in this country, and definitely not a selling point for someone appointed to the head of the Department of Justice.

But I digress.

Thus far I’ve not turned up much on Mukasey, definitely nothing like Gonzo’s disdain for the Geneva and Vienna conventions, but the following passage in a WSJ OpEd that Mukasey penned really rubs me the wrong way:

First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates–beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001–criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules–in a case it has agreed to hear relating to Guantanamo detainees–that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

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. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation–a practice, known as rendition, followed during the Clinton administration.

We’ve heard similar arguments before. The idea that because terrorists are for some reason different than any other criminal gives plausible cause to some way or another weaken the integrity of our justice system, an idea that is ludicrous to those of us who believe that a) the best way to fight terrorism is exactly to treat it like the criminal activity that it is, and b) the justice system is, when not compromised, one of the underlying ideals that make America what it is.

What really sets me on edge is the concept that for any other criminal we have a high standard of evidence to prove guilt, but for terrorists perhaps we should… eh… you know ease up on those standards a little bit so we can catch them strikes me as particularly dangerous because then we run the risk of punishing the innocent, the reason for which the standards of evidence in the American judicial system is so high. Considering the complexity and volatility of the conflict in which we are currently mired in, such relaxed standards and the false convictions that might result could have significantly more drastic consequences than may be readily apparent.

As I just noted in my previous post, perception is reality. And the perception that we are falsely persecuting, prosecuting, and convicting Muslims under the guise of capturing terrorists would only seek to further erode our already precarious image among the Muslim world.

But then, as I say, I’m no legal wiz, and anyone willing to engage in further dialogue on this is welcome to do so. I just get the funny feeling that we’re just seeing more of the same, just in a prettier wrapper.

2 Responses to “Do I Really Have To Be The One?”

  1. Mick Arran says:

    Glenn Greenwald – who is a Constitutional lawyer – wrote a long post on his Salon blog about Mukasey’s long battle with the Bush Admin and the Gonzo DOJ in the Padilla case. He respects the law – mostly – and is almost certainly the best we’re likely to get from the Emperor.

  2. I read it. I dig it, and trust me, I’m sure this is the best we’re likely to get from the guy, but like I said, I think it still bares talking that this guy maybe shouldn’t necessarily be a consensus candidate.

    More stuff for ya:

    From an earlier WSJ OpEd:

    Paraphrase, the worst thing about the US Patriot Act is the name.

    Nor am I particularly happy about burgeoning information about his ties to Rudy G. especially when you take into account I think Rudy is probably the scariest presidential candidate in the field (excluding the severe whackos right now):

    Short story, slowly it’s looking as though Mukasey is turning out to be yet another neocon, albeit not quite as blatantof one.

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