ACSBlog: The Blog of the American Constitution Society

As a former career Deputy Assistant Attorney General at the Justice Department, I read with dismay Attorney General Michael Mukasey's recent speech at Boston College Law School's graduation. The speech is essentially a defense of John Yoo (and David Addington, etc.) without naming names. At its core, I think it signifies what many of us knew before the Senate confirmed Judge Mukasey to replace Alberto Gonzales: first, that the administration would brook no break in its defense of its terrorism policies; and second, that being a judge before becoming Attorney General does not make you any less partisan or ideological.

As to the administration’s defense of its terrorism policies, Attorney General Mukasey has carried forward the same substantive policies as Attorney General Gonzales. Despite all the handwringing in the Senate in its hope that Mukasey would bring some independent legal judgment to the post, his continued refusal to articulate the truth that waterboarding is legally torture — and has been considered as such from the Spanish Inquisition to US prosecution of Japanese imperial soldiers — is the clearest evidence that Mukasey as attorney general is more of the same. It is a travesty that the nation's top law enforcement official cannot say that X constitutes torture when the Justice Department is literally in the business of saying Y constitutes a crime. 

Regarding the attorney general’s partisan bona fides, although the departures of the Monica Goodlings and Kyle Sampsons is worth applauding, their departure was not ushered in by Mukasey's arrival but rather as a consequence of Gonzales's departure and months of investigations by a reinvigorated Congress shocked by the blatant politicization of the Department. So it might be fair to say that the Justice Department is less politicized, but by no means is it unpoliticized. In fact, Mukasey's appointment is a commitment to continue the administration's partisan approach to national security issues until the clock chimes noon on January 20, 2009. Mukasey's status as a former federal judge who handled some terrorism cases is being used to maximum effect to pressure Congress in ways that Gonzales, despite his best efforts, could not.

Mukasey's speech at Boston College demonstrated that he is no less committed than Gonzales to defending the Bush administration's excesses and rupture of the rule of law. In the speech, the nation's chief law enforcement officer attacked critics of the Department's tortured and mostly disavowed legal opinions as "hostile and unforgiving." 

Those of us who embrace the "rule of law" as a real constraint, rather than a mere rhetorical device, are indeed “hostile and unforgiving,” but not in the way Mukasey means. We are hostile to the manifest disregard by Justice Department officials, like John Yoo, to what “rule of law” actually means. We are “shocked, disappointed, and angry” that the temporary stewards of the Justice Department so readily subverted that great institution to the political whims of the White House. And we are “unforgiving”—for no forgiveness has been sought, no apologies have been proffered, no real accountability has been obtained—all we have is the dust kicked up by a sustained campaign of rationalization and justifications.

Let me be clear: there were exceedingly difficult times following the 9/11 attacks and the government was faced with difficult decisions, but breaking the laws that underpin our democracy shouldn’t have been an option. At the same time, as has been widely acknowledged outside the administration, the administration’s go-it-alone, my-way or the highway approach that largely cut out Congress and the courts and, in several instances, the law, has been counterproductive. This counter-constitutional approach violated the Framers deliberate structure of shared war-making powers between the first branch and the second branch. There is no national security exception to the Constitution’s Bill of Rights or its separation of powers. The belief otherwise, the unfounded idea that the phrase “commander-in-chief” can obliterate all other words in the Constitution and 230 years of tradition, is fantastical. 

The administration’s rationale, as Mukasey alluded to in his speech, was that al-Qaeda posed an "existential threat" unlike any other. That fancy phrase ignores our government’s adherence to the rule of law when we manifestly faced an existential threat of nuclear annihilation by thousands of the Soviet Union’s nuclear warheads. Under this administration’s mistaken and ahistoric understanding, law has been replaced by secret fiat — secret "reinterpretation" of long-standing constitutional provisions, treaties, statutes, and regulations. President George W. Bush did not bring down a new Constitution from Capitol Hill to an awaiting and terrified people; he sacrificed “rule of law” on the altar of unitary executive theory.

Critics of this administration have been right, although we must plead guilty to the occasional rhetorical flourish. Even so, that should not obscure the fact that some White House and Department of Justice lawyers had an ideological agenda to enhance, or in their words "restore," executive power to its zenith and beyond. Yoo has attempted to legitimize these views as "Hamiltonian," a monarchical view of the president with king-like powers that was largely rejected by the people who ratified the Constitution.

Moreover, there was a determined effort to dismantle, reinterpret, minimize or obliterate key checks on executive power. While the temporary head of the Justice Department wishes to call what happened fully consistent with, and in essence the embodiment of the "rule of law" as opposed to the rule of men, this is self-delusion. It is a rewriting of history. It does violence to the meaning of rule of law. 

Let's take a look at a recently revealed application of the president’s legal theories and see whether the attorney general's rhetorical gloss on the meaning of the rule of law, as applied by certain Justice Department lawyers, can withstand the light of day.

In his speech the Attorney General claims that criticized DOJ lawyers were simply giving "close reading" to legal texts and identifying what was "permitted as a matter of law" rather than suggesting what was "prudent as a matter of policy." He suggested that being able to distinguish between the two is at "the heart of what it means to live in a society governed by the rule of law." I do not argue this point. But the most recent revelation shows yet again that Yoo's "analysis" squarely fails the law part and falls resoundingly in the policy part.

Just a week ago, as the Attorney General was prepping this speech, Senators Sheldon Whitehouse and Dianne Feinstein wrangled free of DOJ an illuminating but under-reported bit of Yoo's "close reading" of legal text. What happened was that Yoo — in his quest to discern whether the administration could legally conduct domestic warrantless electronic surveillance of Americans’ communications — ignored the plain, unambiguous law he was supposed to be dispassionately interpreting. 

The statute at issue, in the federal criminal code, says that the criminal wiretapping rules and the procedures spelled out in FISA are "the exclusive means" for the executive branch to conduct electronic surveillance in the US.    As the Supreme Court stated, in an opinion by Justice Thomas in 2001, "exclusive" means "exclusive." Yoo, however, read “exclusive” to mean “not exclusive.” He said Congress had not been sufficiently clear that Congress meant that the Executive had to use the procedures the law referred to. Any plain reading of the statute would require Yoo to say "no," the president must follow these procedures set by law, procedures which all of Bush's predecessors had followed since the Foreign Intelligence Surveillance Act was passed back in 1978. Any lawyer faithful to the rule of law who was confused by the plain language of the statute would have looked to the legislative history as to how it came about.

Congress passed FISA to require the executive to go to the specially created court to get warrants to conduct electronic surveillance in the U.S. to gather foreign intelligence. Numerous legislative findings and reports, as well as the first two pages of the law, say just that. Indeed the legislation repealed a 1968 provision that had articulated the version of the law that Yoo preferred —excluding foreign intelligence gathering from federal criminal wiretap law. That provision was repealed, after all, in the aftermath of a congressional investigation into Nixon's warrantless wiretapping in the name of national security (during wartime), which led to revelations of wider warrantless wiretapping and spying on Americans by Democratic and Republican administrations. 

Prior to FISA, many Americans were spied upon on the spurious ground that these citizens were linked to communist front groups. Pretty much anyone can be “linked” if there are no checks to protect individual rights and push back on administration findings. In Congress’s investigation into the matter, known as the Church and Pike Committee investigations, Congress found literally thousands of instances of Americans being monitored in violation of the Fourth Amendment rights by the National Security Agency, FBI, and other agencies in the name of national security or some dubious foreign intelligence "link." 

And so Congress passed FISA to provide the exclusive procedures for the president to engage in domestic wiretapping, including listening in on calls "to or from" Americans internationally as well as purely local calls. Congress was determined that there be no loopholes, and set forth rules for emergencies and times of war. 

In spite of all of this, Yoo ignored the language of the statute and its history and said “yes” to the president. His memo, and the subsequent warrantless surveillance of Americans' communications and conversations that have reported ensued, were contrary to the law. They were contrary to the rule of law.

Attorney General Mukasey doesn’t see things that way. In fairness, the Department of Justice admitted it no longer follows that particular analysis, because it now relies on Jack Goldsmith’s effort to clean up that mess by arguing the Authorization for the Use of Military Force permitted the wiretapping. Here we go again.

It is more than unfortunate that the Attorney General does not know the law when he sees it. Efforts to recast the aftermath of Watergate, including the FISA enacted in its wake, as excesses may be a popular canard in at Justice Department headquarters, but FISA is still the law—and the administration must follow it to uphold the “rule of law.” Although it was vaguely comforting to see the attorney general extol the virtues of the rule of law to budding lawyers, his actions speak much louder than his words.