Post 9/11 Mukasey: No Better or Worse

Attorney general nominee Michael B. Mukasey is under fire from liberal groups and others criticizing his treatment of detainees and potential material witnesses rounded up in the weeks after Sept. 11. Some of these folks also are taking shots at him for his willingness back, then to defer excessively to, the executive branch on terror law issues.

These are fair concerns. They speak to the nominee's willingness and ability to demonstrate both empathy and independence if and when he becomes the nation's chief law enforcement official. But Mukasey's conduct in the dark days of 2001 and 2002 should be judged in the context of what the rest of the judiciary was doing back then. And, by that measure, his purported insensitivities and failure to check the executive branch make him no better or worse than his colleagues-- many of whom were both arbitrary toward defendants and weak-kneed toward the White House.

In the typical courtroom, it went like this. Executive branch officials-- military personnel, intelligence agents or others-- would make vague assertions about a particular terror suspect or potential witness. The essence of the allegations was almost always: "The man in the dock is a danger. But we really can't tell you why. So trust us, Mr. Judge, because we are all in this together." In this manner, hundreds, maybe thousands of people in the United States were either dubiously detained or overzealously charged in the immediate aftermath of Sept. 11.

It took years--until 2004 at the Supreme Court level-- before a few judges woke up and realized that executive branch agents often were exaggerating the allegations against terror suspects. It took hundreds of cases before federal trial judges began to force the feds to be more specific in their charges. And that was really only after it became clear that the White House and Justice Department had failed to play it straight about Zacarias Moussaoui (who was not, as initially billed, the "twentieth hijacker") or Jose Padilla (who was not, as initially billed, the "dirty bomber")-- to use only two of the most well-known examples.

That Mukasey wasn't the first federal judge to speak out against the government's rush to judgment means he isn't a man of extraordinary courage and integrity. But so what? There are plenty of good lawyers, good judges and good people who don't lay claim to extraordinary powers. And there are plenty of federal judges far more "liberal" than Mukasey who also reacted poorly in those uncertain days. The judiciary's failure to act as a bulwark against fear was a whole-scale systemic failure and cannot be laid at the feet of a single person-- even one now willing to serve as attorney general.

By Andrew Cohen |  September 25, 2007; 7:45 AM ET
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Yea; we don't need not stinking independent thinkers or leaders during crisis, just go along to get along. So what if the judiciary was wrong and he was wrong. Why should we expect excellence from our leaders?

Posted by: Bushie | September 25, 2007 10:10 AM

If Senate Democrats attempt to hold up or defeat this nomination based on this type of argument, they'll only be shooting themselves in the foot again.
As with Robert Gates, they've forced the President to nominate a competent, not-too-ideological political "outsider," which is the most that can realistically be hoped for.
It's just 16 months, and there's no reason to believe Mukasey will do half the damage in that time that Gonzales did every 16 days.
And when it's over, President Hillary or President Barack will hopefully appoint someone truly worthy of the job.

Posted by: Judgito | September 25, 2007 12:04 PM

"Judgito" is right. The Dems have a real knack for shooting themselves in the foot in their efforts to protect individual liberties and civil rights. They seem inevitably to come off as national security wimps.

Posted by: Pinchus Phuktous | September 25, 2007 01:46 PM

Well Bushie has a point: If you are looking at the DOJ for "excellence in government" then you clearly, are looking in the WRONG PLACE.

I swear to God, with officials like KENNETH E. MELSON, Director of the Executive Office of US Attorneys (Paul McNulty's protegee, former AUSA at the EdVA, who is a straight-up, brainless IDIOT and political ideologue), IG Glenn Fine (who only opens an investigation if, and when, a senior Judiciary Comm'tte member asks him too-but if it isn't on the front page, but has to do with thorny political cover-ups by DOJ officials that haven't been brought before Congress YET, then Fine just says, "not my job"), and of course, ALICE FISHER, Asst. AG for Criminal (neither a prosecutor or civil litigator she-what IS she still doing in that job, pray tell?). When you have had one of the most insidious, unprofessional, deceptive, incompetent ideologue DAGs in the HISTORY of the DOJ-PAUL MCNULTY (and believe me, his karma is gonna catch up with him, regardless of whether he is now at Baker & McKenzie!) as well as a less insidious, and less deceptive, but no less incompetent AG, Gonzales-THEN YOU'RE RIGHT, EXCELLENCE IS NOT WHAT YOU'RE STRIVING FOR-MORE LIKE, LAWYERS WHO SIMPLY HAVE A BASIC UNDERSTANDING OF THE RULE OF LAW, AND WHO KNOW HOW TO USE THE BRAIN THAT GOD GAVE THEM AND NOT DISSEMBLE, COVER-UP, MISREPRESENT, ACT IN A DECEPTIVE AND DISINGENUOUS MANNER, AND JUST GENERALLY, NOT ABUSE THE PUBLIC TRUST WHILE THEY ARE IN PUBLIC OFFICE, AT LEAST!

You'd think that wouldn't be so hard....but at DOJ, there has been no "lowering of the bar" in terms of the picks for high-level positions at DOJ-they've removed the bar totally-and have just let the riff-raff run wild.

Posted by: | September 25, 2007 02:02 PM

This 2:02 guy is quite funny, I mean that in a good way.

Posted by: | September 25, 2007 04:43 PM

Well, there's that, and then there's the extrajudicial stuff. What judge sentenced Pat Tillman to a good fragging for criticizing Bush? No judge; a few lawyers, maybe, but no judge. But the Pat Tillmans and whistleblowers on American soil have no protection from Executive Branch tyranny.

Posted by: Singing Senator | September 25, 2007 08:00 PM

"Mukasey's conduct in the dark days of 2001 and 2002 should be judged in the context of what the rest of the judiciary was doing back then"
- That's funny, I thought you were supposed to judge the conduct of the judiciary against the US constitution. That's why we have such a thing, right?

Posted by: | September 26, 2007 02:16 AM

The Second Circuit Court of Appeals unanimously endorsed Mukasey's application of the material witness statute, while overturning another district judge who came to the opposite conclusion.

Posted by: | September 26, 2007 05:28 AM

One would think so, to 2:16. Ethical purism isn't very in, some act not even aware of the possibility.

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