Posts Tagged ‘Michael Mukasey’

Former Bush Attorney General: American Justice System Led to September 11

Tuesday, October 20th, 2009

[digg-reddit-me]I already commented on this Mukasey piece – but I wanted to follow up and make clear why this piece from a well-respected “conservative” demonstrates how far the conservative movement, the right wing, and the Republican Party have fallen. First, it’s important to note Mukasey’s position under Bush – as the chief proponent and custodian of our justice system. Second, one should remember that he was long considered a moderate in the party.

Yet Mukasey literally blames September 11 on American values, on the American justice system:

[W]e put our vaunted civilian justice system on display in these [previous terrorism] cases…

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents….

Or, as the subhead put it:

We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

This is not a conservative approach to the issue. It is a radical one. The accumulated wisdom of our forerunners is thrown out the window in the favor of a shiny, new and “improved” justice system. And even worse the barratuve being built is clearly unhinged from reality. Its only purpose seems to be the same as Cheney’s – to preemptively politicize the aftermath of the next attack. Reading his argument analytically, it’s hard to see how he reaches the conclusion he does regarding the American justice system. The list of deficiencies are all manageable – perhaps with some tweaks – within our legal system. Perhaps they suggest we should try a system of national security courts. But Mukasey concludes instead that they necessitate throwing out our values and the institutions which represent the accumulated wisdom of our democracy.

This leap comes from the narrative. The rationale Mukasey offers is deeper than any of the actual facts he cites – and is emotional rather than logical. For him, September 11 happened because our justice system doesn’t work against terrorism. It is an argument parallel to Cheney’s – that September 11 happened because we were weak – and as a result of this mindset, Cheney set out demonstrating our strength by bullying other nations, withdrawing from treaties, avoiding multilateral institutions, invading Iraq, avoiding the Middle East peace processes, refusing to talk to our adversaries, labeling them evil. But in each case, despite the emotional “logic,” the narrative itself is unhinged from reality.

The fact that a “moderate” in the Republican Party has been so radicalized demonstrates how far from common sense the right wing movement has fallen.

[Image not subject to copyright.]

The Fallacies of Mukasey

Tuesday, October 20th, 2009

[digg-reddit-me]Michael Mukasey’s editorial in the Wall Street Journal yesterday continues to demonstrate the collapse of common sense in the Republican Party. His thesis is that “civilian courts are no place to try terrorists.” His main supporting argument – and the subheadline – suggests that there is a direct link between trying terrorists in a criminal proceeding and September 11. He doesn’t explain the link anywhere in the piece – but as the subhead says:

We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

Mukasey himself concludes his piece:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without. [my emphasis]

The “if…then…” relationship between these two is tenuous – and if you read the piece, you notice that Mukasey does not try to make it. And his laziness is evident elsewhere as he tries to attack Attorney General Eric Holder’s contention that a certain group of terrorists was prosecuted successfully on the grounds that (a) they were not executed because a jury member lied about his willingness to impose the death penalty; and (b) because one prisoner attacked a guard and injured him seriously.

The bulk of his piece does not attempt to further the narrative about how American justice leads to terrorist attacks on America – it instead raises a number of other issues, which have often been gone over. There is some legitimacy to this critique – so I do not mean to dismiss it outright. Phillip Bobbitt and some other legal scholars on the left have used it to make the case for “National Security Courts” which would solely deal with issues of terrorism and national security threats. Mukasey though uses them to make the more radical argument that our justice system itself is incapable of dealing with the threat – and so he proposes a kind of preemptive surrender of values.

These are the basic issues he raises:

  • Trying terrorists would require extra security for judges, jurors, prosecutors, etcetera.
  • This extra security (and additional caseload) would further burden an overloaded system.
  • The court itself would become a target.
  • Trying terrorists in a court would encourage litigation of national security issues.
  • If terrorists are convicted and put into the general prison population, they would be able to try to recruit converts to jihad.
  • Those suspected terrorists held by George W. Bush weren’t treated consistently with American standards of justice – and due to various reasons, we cannot make any case against many of them.
  • Part of our justice system involves the full disclosure of evidence to the defendants; this would allow information to leak, including possibly about intelligence means and methods.

Only the last two are legitimate issues that are difficult to deal with. The first five all have relatively easy solutions if we decide that our American justice system is capable of handling the threat from terrorism. We will provide the extra security. We will hire more judges and prosecutors and get the necessary resources to handle the additional caseload – getting this done would be as much a priority as having enough troops to accomplish a mission in Iraq. We would house terrorists separately from the general prison population – and I haven’t seen anyone suggest otherwise. (Though it’s worth noting that the example Mukasey gives is of a man who was radicalized in prison without being housed with terrorists.)

The issue of what to do with the prisoners George W. Bush was responsible for is a thorny one. Bush and Mukasey left the situation unresolved, and however it is resolved, it will prove politically and legally hazardous. But Obama seems to be approaching this situation pragmatically – and avoiding letting a desire for consistency to constrain him. This is the overall right approach, though the details could obviously be resolved poorly.

Regarding the last issue, Mukasy raises a very salient point – one which a National Security Court would resolve. This issue was also raised with respect to the War on Drugs and efforts to prosecute organized crime, and in each case, a new court with a new justice system was proposed. But our justice system proved able to handle these issues after early setbacks. Perhaps a new court is needed here, as our adversarial system can work to the advantage of organized groups opposing it. This is an issue to be debated – and a serious one. I would tend to believe that our courts – perhaps with some extra rules or procedures designed to mitigate the downsides – can handle these cases.

[Image by threecee licensed under Creative Commons.]

  • Larger Version (Link now works.)
  • Tags

  • Archives

  • Categories