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

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


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

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

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


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:


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).  

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).

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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