War of Terror’s New Front: Mukasey


Picking Mukasey as AG should help the GOP and Rudy and should scare civil libertarians.

The selection of terror-case judge Michael Mukasey, a pal of Rudy Giuliani‘s, as the next AG broadly hints at the GOP’s strategy for next year’s elections: Terror 24-7.

Mukasey’s close ties to Rudy make him a simply fabulous choice as attorney general. He’s practically a running mate for Giuliani during the next year of campaigning.

What about Mukasey and the rest of us? For the next year as lame-duck AG, Mukasey, who presided over the trial of the World Trade Center’s 1993 bombers, will be a constant and sympathetic/heroic reminder of the “war on terror.” Maybe that will stoke enough fear in us that we’ll forget the war of terror we’ve created in Iraq.

This is a smart move by the GOP. It smacks of Karl Rove, but he supposedly left the building.

Here’s the bad news: Mukasey is potentially far more hazardous to our civil liberties than Alberto Gonzales ever was. Gonzales was a dumb-ass, and Mukasey is very sharp. Mukasey thinks so highly of the Patriot Act that he felt compelled to defend it in a 2004 Wall Street Journal op-ed, writing:

I think that that awkward name may very well be the worst thing about the statute.

Dispensing with the name, Mukasey proceeds to write a scary analysis, particularly his sneering at librarians’ concerns and his strong implication that the Bill of Rights, because it was tacked onto the Constitution, has less heft.

His argument is that we ought to give the government the benefit of the doubt in its dealings with we the people. That’s the same kind of reasoning that Chief Justice John Roberts uses to give corporations the benefit of the doubt over people, as I wrote in July 2005..

Here are Mukasey’s concluding paragraphs from the WSJ op-ed:

As we participate in this debate on what is the right course to pursue [regarding the Patriot Act and civil liberties], I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution — principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution — the boring part — the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government — God-given rights, no less, according to the Declaration of Independence — then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

So, as the historian Walter Berns has argued, the built-in message — the hidden message in the structure of the Constitution — is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself — and us — alive.

Of course, it’s the government that determines what measures are required to “keep us alive.” This is one scary lawyer, or as Ben Franklin said:

They who would give up an essential liberty for temporary security, deserve neither liberty or security.

But concerning the really important stuff — the ’08 presidential campaign — Giuliani now has a security blanket. Mukasey is, in effect, his running mate. He’ll get bipartisan support from the Senate — Chuck Schumer and other Democrats love him, and Mukasey’s role as a judge intimately involved with World Trade Center and other terrorism cases while he was a federal judge in New York City will guarantee him a free pass during confirmation hearings.

You’ll hear the word “terror” about a million times during those brief hearings, and the horror of the attacks will be brought up again and again.

As to Mukasey’s connections with Giuliani? Forget this morning’s papers if you want all the details. As Ron Mills pointed out yesterday in his cleverly named blog, Ron Mills — News And Commentary, Mukasey is a really close pal of Rudy’s — he administered the oath of office to newly elected Mayor Giuliani twice in 1994 — once in Mukasey’s apartment.

Mukasey was already a member of the Giuliani campaign’s “Justice Advisory Committee”, and Mukasey’s son Marc is a partner in Rudy’s law firm.

The apartment oath and the fact that Marc Mukasey is a law partner of Rudy’s somehow didn’t make it into this morning’s New York Times story.

But if Rudy wins the ’08 election, you can be sure of one detail: Mukasey will stay on as AG.

If you have some time on your hands, go to John Young‘s insane and great for the complete transcript of the trial stemming from the ’93 bombing.

And what a trial that was. The prosecutor won the case, and you’d think that the GOP would love to give him a top job in the Bush administration — except for the fact that the prosecutor was Patrick Fitzgerald.

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