Special Guest: Michael Mukasey on Law, Terror & America
Few can claim as much knowledge and experience in the intersection of national security and the law as Michael Mukasey. He served as Attorney General from November 2007 to January 2009 after spending 18 years on the bench as a federal judge in New York. Cases over which he presided included the 1993 World Trade Center bombing and the trial of Jose Padilla. He is now a partner at the Manhattan law firm Debevoise & Plimpton LLP, and joined Bellum for an interview last March.
National security issues once consumed “easily thirty percent” of his job. Mukasey received a security briefing every day and once a week followed up that briefing with a meeting with President Bush on related matters. In addition, there were applications to the FISA Court, dealing with surveillance and wiretapping of suspected terrorists.
Today things are a little different. He exercises each morning, has breakfast, and comes into the law firm, but after that it varies. “I’ve done arbitrations, mediations…some travel, not a lot,” he said. “I manage to drag myself out of here around six o’clock in the evening, and take things home and work on them.” His portfolio includes internal corporate investigations, some conventional litigation, and offering clients “advice from 30,000 feet.”
“If I had any strengths as a judge, one of them was a low fascination threshold,” Mukasey said. “I get interested in what I do. I don’t lose interest simply because it’s in a smaller forum.”
Terror and the Law
One key question that has dominated policy discussions in Washington since September 11, 2001 — and even prior to that — is whether the campaign against al Qaeda is a matter for criminal justice or constitutes an actual war. For his part, Mukasey tends to ascribe to the latter view.
“I don’t regard the Attorney General as simply being on the crime side,” he argued. Limiting terrorist attacks to crimes is a mistake, in this view; they are also acts of war. “One of the things the Attorney General can do is to help clarify the distinction between where one leaves off and the other begins, or where they overlap.”
In terms of the larger war on terrorism, Mukasey is optimistic about the ultimate outcome. “We stuck out the Cold War and prevailed. We’ve stuck out a lot of things and prevailed. My own view is we’re going to stick this out and prevail, too.”
Mukasey is careful in his appraisal of the Obama administration’s view on these issues. “I think part of the problem is that there are a number of issues that we don’t like to deal with explicitly, and so we’ve dealt with them, in part, by denial,” he said. “Detention is one of them. I think we need a new amendment to the Authorization for the Use of Military Force that will speak about detention, about who it is we’re really fighting — in addition to the enumerated organizations — and deal with some of the detention issues, so that we’ve got standards for keeping it in place.”
The Constitution and American Exceptionalism
That the Tea Party is a controversial movement is a truism. For avid readers, one of the more visible consequences of it is a plethora of recent books and renewed interest in the American founding.
“All in all,” Mukasey began, “it seems to me a very healthy thing for people to be interested in the Constitution.” For his part, he carries a copy of the document in his jacket wherever he goes, and is a supporter of the Federalist Society.
“I think it’s important that people understand and know what’s in there, and that they also know and understand that the people who wrote it were very practical men,” he added. “It’s not just a theoretical construct. It’s a very practical document and it’s got to be read that way.”
When asked about American exceptionalism, Mukasey’s response was quick and confident: the United States is an exceptional country.
“It’s the country that has provided the most freedom to the most people with the most prosperous result in the history of the world,” he said without hesitation. “Is it perfect? No. But it is certainly exceptional. And I don’t feel at all funny about saying that or diffident about it, and I don’t think anybody else should either.”