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Then and Now: Rule of Law, Mukasey, and Obama's DOJ

by 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.

UPDATE:  The Associated Press is reporting today that the Obama administration (and Eric Holder specifically) are now signaling that it might reverse itself and put the 9/11 defendants before a military commission rather than a civilian trial.  Others are reporting that Robert Gibbs suggested the same thing today.  I have no idea how much faith to put in those reports, but what I do know is that once you embrace the core Bush/Cheney detention policies by continuing military commissions and indefinite detentions, then you have no principled way to fend off attacks like those from Mukasey.  How could the President or his defenders possibly stand up and claim with a straight face that "the rule of law" or whatever lofty standards they want to cite compel civilian trials when they themselves are denying civilian trials to scores of detainees?
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