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Mukasey's Message

11:39 PM, Nov 24, 2008 • By JOHN MCCORMACK
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Attorney General Michael Mukasey fainted during a speech last week to the Federalist Society, but, thankfully, he was released from the hospital with a clean bill of health and appears to be in good spirits. It's really too bad, though, that the actual speech he delivered hasn't received more attention. The attorney general offered a strong defense of the Bush administration's war on terror policies and laid down some challenges for the incoming administration:

As the end of this Administration draws near, you would expect to hear broad praise for this success at keeping our Nation safe. Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration's accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe. We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well.

In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them. In an odd way, we have become victims of our own success. In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn't need these counterterrorism policies. ...

If you listen only to the critics, you might assume, for example, that this Administration, by asserting that habeas corpus did not apply to alien enemy combatants, had tried to deprive the judiciary of a time-honored role in second-guessing our military commanders' decisions concerning whom to detain on foreign battlefields. Of course, before this armed conflict, federal judges have never asserted the authority to afford habeas corpus to alien enemy combatants captured and detained abroad.

As even the majority in Boumediene acknowledged, the Supreme Court had "never held that noncitizens detained by our Government" outside the United States had "any rights under our Constitution." Indeed, following World War II, the Court had specifically rejected that habeas corpus would apply in that context. The Administration's position in Boumediene thus was at least arguably justified by text, history, and precedent. A majority of the Supreme Court may have disagreed, but the Administration's position hardly constitutes the attack on habeas corpus asserted, but not explained, by its critics like the author I quoted.

And when people denounce a purported assault on the "Geneva Conventions," you might expect some level of specificity in the charges. One cannot "assault" a treaty as an abstract concept; one can only violate the treaty by acting contrary to its words. The Geneva Conventions contain 319 articles, of which 315 are plainly addressed to armed conflicts among the nations that signed the Conventions. It is hardly surprising that the United States concluded that those provisions would not apply to the armed conflict against Al Qaeda, an international terrorist group and not, the last time I checked, a signatory to the Conventions.

One common article appearing in each of the four conventions, Article 3, provides rules that govern "conflicts not of an international character," such as civil wars. The President concluded early on that the global war against Al Qaeda had a decidedly "international character." In Hamdan v. Rumsfeld, a majority of the Supreme Court disagreed. This narrow legal dispute -- again turning on an Administration interpretation that was both reasonable and, indeed consistent with text, history and precedent -- hardly warrants the sweeping, dismissive, and entirely conclusory criticisms so frequently heard.

I focus on these types of criticisms not because they are so extraordinary, but because they are unfortunately so typical of people who substitute their policy views for any serious legal analysis and who would turn a good-faith legal disagreement into a battle over the purported existence or non-existence of the rule of law. The irony, of course, is that the law requires a serious analysis of text, precedent, and history, and it does not serve the rule of law to substitute a smug sense of outrage for that kind of analysis.