Legal Eagle

An Interview with Judge Michael Mukasey

The struggle for an open society to remain open as it fights traditional and asymmetric wars against its opponents is a difficult one. Judge Michael Mukasey, who served as the U.S. Attorney General from 2007 to 2009, was present for some of the country’s toughest decisions and biggest internal struggles over the questions of privacy and security. Here, he explains why the tension between those poles is more a percieved than a real tension — and the risks our move away from human intelligence poses.

The public debate over detention at Guantanamo Bay codifies difficult issues around national security.

Flickr. The public debate over detention at Guantanamo Bay codifies difficult issues around national security.

Octavian Report: What is your take on the tension between national security and privacy rights?

Michael Mukasey: I see that as a perceived tension rather than as a real one.

OR: Why as only a perceived tension? And are we more vulnerable now than we were previously?

Mukasey: On the latter, yes. Both because of the pulling-back of our electronic intelligence gathering process and because of there being virtually no human intelligence gathering process: we were capturing people and interrogating them and now we are killing them with drones. It’s very hard to get information out of a corpse. We’re sort of signing ourselves up for that.

As for why it’s not an invasion of privacy, what’s the information that’s being gathered? The information that’s being gathered is not content, it’s metadata. You can use metadata in a very invasive way if you want to break down somebody’s life and analyze who they call and who calls them and what their other patterns of behavior are. But that’s not what it’s used for. It’s not what it’s allowed to be used for, and there’s a lot of oversight to make sure that it’s not used for that. In addition to which, who would use it and to what end?

Glenn Greenwald wrote in his book that it’s all to exercise control. Well, tease that out. You can’t exercise control over people unless you tell them that you’re listening in on them, right? Because if everybody goes around thinking nobody’s being listened in on, then there’s no control. People just behave spontaneously. Obviously whoever it is who told them that they’re being listened in on is part of the conspiracy, because he made it known. Under that theory — which I of course think is nonsense — Greenwald or Snowden himself may be the keystone of the conspiracy. If not, he was the person who made it possible to spread this myth that we’re all being controlled and get everybody freaked out.

There’s no recreational use of that information. That’s something that the people who have it can’t afford to do. The one thing they live in horror of is waking up one morning and finding out we’ve been attacked again. That’s the major nightmare. That’s what they bend all their efforts to avoid. How is it they’re going to spend their time using it for some undefined reason? I’ve never gotten that; I don’t get it now.

OR: What are the judicial oversights on that process?

Mukasey: Judicially there’s the FISA court to which they have to make periodic application and disclosures of what they’re doing, to see whether there’s any error in the gathering of the intel, and if so, what it is. And Congress. It’s not just the court, the court was put there as an afterthought. Originally it was Congress. There would be Intelligence Committees of both houses, which are staffed by both Democrats and Republicans.

The national security division which submits those applications to the FISA court takes a very conservative, restrained approach because the one thing they’re afraid of is pushing the envelope. The one thing they want to avoid is starting to get into a back and forth where the court doesn’t trust them. At that point the level of scrutiny is going to go up. There’s plenty of scrutiny, but you can slow it down and really make a mess of things.

If you start becoming adventurous — I recall an exchange with Ray Kelly when he was police commissioner of New York City and I was the AG. His people told him that the Justice Department wasn’t being adventurous enough. That we really didn’t understand probable cause, and that we weren’t being aggressive enough in making applications to the FISA court. He had some guy who was bringing that in his ear. My response was, “We’ve been at this for a long time. We understand what it is, and we consciously try to avoid being adventurous in here. Don’t tell us we don’t know what we’re doing.”

In the oil business, if you’re not drilling a certain number of dry wells then you’re not being aggressive enough. That may work when you’re drilling for oil, but if you’re drilling for intelligence, as it were, when you start drilling dry holes what’s going to happen is you’re going to drill more dry holes. The drilling will become completed at less and less frequent intervals.

OR: How do you explain the whipsaw in public opinion on national security, from complaints of government excess to complaints of government laziness?

Mukasey: Jack Goldsmith, former head of the Office of Legal Counsel, had a terrific book called The Terror Presidency in which he describes this as cycles of aggression and timidity where the intelligence community gets pushed to do more, to be more aggressive. They then get more aggressive, there’s a scandal, everybody jumps on the intelligence community, they recede, then there’s an attack or some failure of intelligence. We find that politicians are crawling from much more aggressive conduct, and that that’s gone in cycles, and we should try to break the cycle. We haven’t.

OR: How could we break the cycle?

Mukasey: With a really informed debate and discussion. It would take a President — only Presidents can do addresses that everybody will carry and listen to, in which the President sits down and tries to explain to the country what it is we do and why we do it. Then we’ll have an informed debate, but that hasn’t happened.

OR: As with George W. Bush and the PATRIOT Act?

Mukasey: Bush pushed it in Congress, but it wasn’t that he sat down and looked into the camera and said, “Folks, this is what we’re going to do and this is why we’re going to do it. We’re not invading anybody’s privacy, and this is necessary because, because, because…” There’s a lot of, to some people, very dry stuff in there. But it can be made understandable, and perhaps it should have been.

OR: Are you concerned about Israel and the Democratic Party after the fracas over language in Hillary Clinton’s DNC speech and Obama’s contentious relationship with Netanyahu?

Mukasey: Sure. The Israelis are acting to a certain extent on their own. I’m concerned about it to the extent the United States tries to limit their ability to purchase weapons here. But they make a lot of their own stuff. Not all of it, obviously. They don’t have bunkerbusters and they don’t have the airplanes that deliver them. They don’t have that option, but they are forming alliances in their own part of the world. I think looking at the reality of America’s temporary withdrawal, they’re not just going to sit there and spin their wheels and rail against the heavens. They’re going to act for their own protection. I’m concerned about BDS and the lawfare movement. I’m concerned about it on college campuses, I’m concerned about some of the effects of it. But there are people working to counter it.

OR: Do you think history will have a more favorable view of the Bush administration than it has so far?

Mukasey: I think it should. Although you can’t sit around relying on history. I had my first experience in one of a series of unpleasant experiences with my successor. He walked into my office after the election — before he was even nominated, let alone confirmed — and said he thought that history would treat me kindly.

OR: What do you think of the Obama administration’s response to the national security legacy of the Bush administration?

Mukasey: Remember the President casually saying, “We tortured some folks”? Okay, first off, we didn’t torture anybody as a matter of policy. Some people might have done things they shouldn’t have done, in which case if they were caught they were prosecuted. He’s talking about waterboarding, and the U.S. waterboarded three people. Abu Zubaydah, Khalid Sheikh Mohammed, and a man named Abd-al-Rashim al-Nashiri, who was the architect of the USS Cole attack. I don’t call those people “folks.” We got a ton of valuable intelligence from them. That’s all been documented.

As far as what we did to them, there are memos describing why it’s not torture. They call them torture memos, but they’re non-torture memos. The lengths we went to to avoid torturing people — a lot of midnight oil got burned doing that. Now, whether the first draft of those memos — later succeeded by another draft that came to the same conclusion — whether it was accurate initially or not, I have misgivings about it. Jack Goldsmith revisited that and came to the same conclusions.

There was at one point a description of the torture statute: one that says it’s a crime to subject somebody to severe physical or mental pain or suffering. The statute doesn’t define severe physical suffering, so somebody looking for an analogy found it in some other statute that talked about the pain accompanying organ failure. First of all, organ failure isn’t always accompanied by pain. Secondly, the statute that was used to try to flesh that out had no applicability here. It was from some healthcare thing or other, I think. It wasn’t a criminal statute. It wasn’t anything that dealt with the treatment of prisoners. It had no relevance. I understand about drawing analogies when you’re a lawyer and you don’t have a definition in a statute, but they have to be apposite analogies. You can’t just pull something out of your behind.

When that was revisited, the conclusion was the same. That waterboarding and sleep deprivation did not cause severe physical pain and didn’t cause severe mental suffering as defined in the statute: per that, they couldn’t be transitory.

OR: Guantanamo: do you see the controversy around it as primarily political?

Mukasey: Yes, it’s a political issue. It’s got three advantages over anything in the United States. It is remote, secure, and humane. You bring people over here, it’s not going to be remote, it’s not necessarily going to be secure, and it’s going to be less humane. Guantanamo is actually a pretty humane place. I visited Guantanamo in February of 2008, and they had access to a whole library of Quranic teaching and so forth. Although the most popular video, I was told, was Walker, Texas Ranger. That was the one that circulated the most.

You could see the high-value detainees were monitored constantly. The only one whom I couldn’t see was Khalid Sheikh Mohammed because he was out visiting with a delegation from the International Committee of the Red Cross, to which he complained about how terribly he was being treated. I saw his cell, which had adjacent to it an exercise room where there was an elliptical machine that was the same make and model as the one at the gym at the Lansburgh, where I was then living. Except he didn’t have to get up at five in the morning so as to be the first guy on the machine and avoid having to wait.

People lose track of who’s there. People lose track of what’s done there. There’s a confusion between what happened and what happens at Guantanamo and what happened at the CIA black sites where people were interrogated. Those are two different things. People on the Left will tell you, “Well, we have to close it.” Because it’s become symbolic. The short answer to that is, if you tell the truth, if you take people down there and let them see what’s going on you can see that what you say it’s become symbolic of is in fact not what’s happening.

There was some penal authority from Belgium who visited Guantanamo, and the guy was all set to hold a press conference denouncing it. But he said, “I can’t: this is better than anything we have in Belgium.” The real problem is indefinite detention. That’s the problem. That would be particularly problematic if they’re brought here — because then what do you do when you want to release them?

OR: If they had been part of a uniform army when we captured them, would we be able to detain them indefinitely?

Mukasey: For the duration of the struggle, yes. What people now say is if they obeyed the laws of war, they fought in uniform, carried their arms openly, followed a recognized chain of command, and mostly didn’t target civilians, then they could be detained in a humane fashion consistent with their rank for the duration of the conflict. But since you violated all the rules, we got an even better deal for you. We’re going to take you to New York and give you a trial, and an appointed lawyer, and a public platform.

OR: Do you think war crimes tribunals are effective?

Mukasey: I think they can be effective, but there’s a problem with them: once you start with international war crimes tribunals, it is inherently a political forum. Who is it who says that something is a war crime? There are a lot of people on the Left who believe that when the Israelis defend themselves it’s a war crime. In fact, there have been attempts to detain Israeli officials in Europe, with warrants issued by courts to detain members of the government and members of the military. I think that’s part of what we’re going to face now, thanks to Congress having passed a statute known by the acronym JASTA.

There are lawsuits already in Turkey, in which the claim has been made that the United States was complicit in the coup. I believe there’s a lawsuit in Afghanistan related to drone strikes.

The JASTA decision was bizarre, and all the more so because some of its supporters said the same day that they voted to override the veto — which shows that it was a strictly political decision — that they regretted having done so.

OR: What is your take on James Comey’s actions during the campaign?

Mukasey: I thought they were ghastly start to finish. He had one function, which was to gather facts and present them to the Justice Department. I think on any reasonable view of the facts, Clinton should have been prosecuted. For Comey to, first of all, perform the function of stating in public what the outcome should be is way outside the limits of his job. It appeared to be something that was done in response to the expressed views of the administration, that she hadn’t done anything wrong because she didn’t intend to cause damage to national security (which is not an element of the crime). It was itself a statement by the President that should not have been made. It was highly political and diminished the agency and his reputation. Whether his reputation was deserved or not is a whole different thing.

OR: Pivoting to the judicial branch, what do you think the criteria should be for being on the Supreme Court?

Mukasey: In an ideal world they should be competence and commitment to the rule of law. What you get into is the fact that the courts in modern times — since the 1960’s, really — have taken on more and more political issues. And more and more issues we’re seeing become the subject of political dispute, then get resolved in a court. Which is not necessarily the place where we want to have them resolved. The political process becomes weak because the muscles don’t get used, and politicians are very willing not to have to decide constantly contentious and controversial issues: “All this is a matter for the courts. Nothing we can do about it.”

I think it started with Griswold v. Connecticut, the right to privacy case where there was a challenge to the statute in Connecticut that banned the sale of contraceptives. It was never enforced. But they teed it up as a project, like an exercise machine for some law students — and something called the right of privacy was born, which existed in the emanations and penumbras of various amendments. We were off to the races.

OR: Do you think Antonin Scalia was right in saying such issues should really be dealt with via Constitutional amendments?

Mukasey: Yes. I’m not in favor of larding the Constitution with amendments, but I would much prefer that to asking the judges to say what it ought to mean at any given moment, because then it really does depend on who’s there. It should be a matter of reading the document for what it says and for what it was intended to say. The notion that in the 18th century they didn’t know about the internet and stuff like that — that’s right, they didn’t, but they articulated principles that can be applied pretty straightforwardly. If they can’t, let’s have a Constitutional amendment. But don’t say, “They didn’t know anything about it. Therefore, all bets are off. We’re going to read in, hallucinate, whatever we choose to read in and hallucinate.” Because then it’s entirely dependent on who’s there and who’s doing the reading and hallucinating.

Justice Scalia, for example, rejected the notion of detaining terrorists the way they’ve been detained. He said, in effect: look, if there’s going to be a waiver of the habeas statute that’s something that Congress has to do under the Constitution. You can’t do it just under a general finding that it’s within a President’s war powers.

OR: What do you make of the whole debate on the criminal justice system? Do you think it’s as broken as its critics argue?

Mukasey: I don’t think it is broken. I think that it’s possible to revisit some of the lengthier sentences — the question’s how much more bounce for the buck you get out of putting somebody in for 30 years rather than 15 or 20 as it affects the costs involved in keeping prisoners and the cost devoted to other forms of law enforcement.

I don’t buy into the claim that we have mass incarceration. There is no mass incarceration. Everybody who is in prison is there after having been convicted either after a trial or on his own plea of being guilty beyond a reasonable doubt. We don’t round people up on the streets, we don’t have mass incarceration — and calling it that because there are a lot of people in jail is ridiculous.

OR: What do you think of the argument around “stop-and-frisk” policies?

Mukasey: I think “stop-and-frisk” was recognized by the Supreme Court early on in a case called Terry v. Ohio. This is not something that is an innovation of modern times. It’s entirely appropriate. The crime rate in New York plummeted after its implementation. Not so much because guns were taken off the street, but rather because people knew that there was a danger they were going to be frisked and they left their guns at home. Situations that would have developed into confrontations with firearms instead developed into fistfights — or nothing at all.