Why I Support Attorney General Mukasey
Mar 03, 2008
3 Comments
My only disappointment that Attorney General Michael Mukasey has accepted Boston College Law School’s invitation to be the Commencement Speaker this May is that he will not be the speaker at my own Commencement next year. The recent controversy surrounding Mr. Mukasey is unfortunate and reflects poorly on those creating it. It demonstrates a lack of understanding about the role of a lawyer in our society and about or system of government, and furthermore, is hypocritical.
Lost in the attacks on Mr. Mukasey is who the man really is. Understanding his accomplishments prior to his nomination as Attorney General demonstrates why he is deserving of the law school’s Founder’s Medal, and more importantly, the respect of the entire law school community. Mr. Mukasey served on the United States District for the Southern District of New York from 1987 to 2006 and served as its Chief Judge from 2000 to 2006. Mr. Mukasey had previously served as an Assistant United States Attorney in Manhattan. He has also led a distinguished career as a private litigator. Mr. Mukasey has received several awards during his career, including the Learned Hand Medal for Excellence in Federal Jurisprudence from the Federal Bar Council, the William Tendy Award from the Fiske Association, and awards from the Seymour Association and the Respect for Law Alliance, among others.
Those upset with Mr. Mukasey suggest he advocates illegal or immoral interrogation techniques. What seems to escape his detractors is that Mr. Mukasey did not advocate for, or support, any specific interrogation techniques during his confirmation hearings. When asked for his personal opinion, his response was exactly that of his detractors. “Mukasey said that techniques described as waterboarding by lawmakers ‘seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans.’ But, he continued, ‘hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.’” The Washington Post, Oct. 31, 2007, page A01.
Mr. Mukasey separated his personal beliefs from a professional legal one on behalf of his client, as any lawyer must do, including our own faculty. Do we look down on our professors who have represented convicted murderers and rapists, or who have worked on behalf of local governments seeking to use their eminent domain powers to take away homes from families and the elderly so that a developer can put up a 7-Eleven that produces more tax revenues? No. We may not invite their clients over for dinner, and we might even find their clients to be reprehensible, but we would never protest against them because of their clients. Quite the opposite. We all look up to them for advice and counsel, and many of us consider them good friends, regardless of current or prior clients.
Mr. Mukasey should not be treated any differently. President Bush nominated him with strong bipartisan support, including that of Senator Charles Schumer of New York (no admirer of the President or any of his prior nominees to any position, be it the federal judiciary or the most obscure of government desk jobs). The strong bipartisan support he received at the time of his nomination was a result of his long, distinguished, and even-handed career as a federal prosecutor and judge. That is why he will be speaking at Commencement, and why he deserves the Founder’s Medal as well as our admiration.
Some have attacked Mr. Mukasey for refusing to unilaterally declare certain interrogation techniques illegal. That displays a lack of understanding about how our federal system of government works, and whose job it is to declare something illegal. The Attorney General, a member of the Executive Branch, can only enforce what the law is. It is up to Congress to make something illegal. Students and faculty outraged with certain forms of interrogation should not direct their efforts toward attacking Mr. Mukasey, but rather at lobbying their legislators to make “waterboarding” expressly illegal, or vote them out of office for having done nothing about the matter for years.
As for those arguing that Mr. Mukasey’s testimony should disqualify him from speaking and receiving the Founder’s Medal because his testimony offends Catholic teachings, I find tremendous hypocrisy. The Catholic Church teaches against harsh interrogation techniques. But the Catholic Church also teaches – perhaps even more forcefully – against abortion. Where were all the faculty and students who oppose Mr. Mukasey on moral grounds when Congressman Markey, a vocal abortion rights advocate, delivered the Commencement address in 2007? Not a single member of the faculty tried to organize students against Mr. Markey. No forums were held for students to vent about the “immoral” activities that Mr. Markey supports, both personally and actively, unlike Mr. Mukasey’s alleged “support” for torture, which is evidenced by his answer of “I don’t know” to a question on the subject. It is Congressman Markey who has personal views in conflict with the Catholic Church, not Mr. Mukasey. It is hypocritical for some to use the Catholic Church’s teachings only when it fits their political agendas, and ignore it, or deride it for being “incorrect” or “out-of-touch,” when it does not.
I am proud that Mr. Mukasey is coming to Boston College Law School. He has led a distinguished career and the Class of 2008 could not ask for a better speaker. But I am ashamed that some students and faculty are actively organizing against his appearance. I have no problem with, and in fact applaud, efforts to generate discourse on waterboarding. But for students and faculty to turn their backs on Mr. Mukasey at Commencement, skip Commencement, or otherwise disrupt the ceremonies, is a black mark on them and reflects poorly on Boston College Law School. One wonders whether Mr. Mukasey is being opposed not because of his Senate testimony, but like Secretary of State Condoleezza Rice on main campus in 2006, and unlike Congressman Markey here in 2007, simply because Mr. Mukasey works for President Bush.
Who posted this article?
Guillaume:I respect your opinion and fully understand that there are many in the BCLS community who also support Attorney General Mukasey’s invitation to speak at Commencement. I don’t anticipate that what follows will persuade you to change your mind but I hope that by responding to you that you may find my position something less than hypocritical. I think there is room at BCLS for people, like you, who will stand and cheer for the Attorney General, people who wish to express protest, and people in between.My personal objection to General Mukasey stems from my rejection of his legal position on waterboarding, my disappointment over which forum BCLS has given him, and a strong, unflinching belief that academic institutions have a duty to shed light upon issues of great importance. I also cannot accept that figures of great power and responsibility should be granted obsequious deference simply because of their resumes. Nearly two decades of service on the federal bench should cast no sheen on contemporary faults that violate central tenets of human dignity.In fact, I object as a result of General Mukasey’s resume not in spite of it. His service was used to evidence a commitment to restoring America’s faith in the Justice Department and a temperament disinclined towards abuses of power. Granted, his views on executive power were understood to be in line with the current administration’s, but his purpose was to serve a different kind of tenure than his predecessor, Alberto Gonzales. On the specific issues of torture and Justice Department independence, General Mukasey has failed. His legalistic dodges on waterboarding, which was subsequently condemned with great clarity by others in the Administration, and his recent refusal to present congressional contempt charges to a grand jury recall similar conduct by Gonzales on torture and the U.S. Attorney scandal. It is increasingly clear that General Mukasey was not nominated to reform but rather to weather a storm of inquiries into past incidents that might trigger liability for those who violated the law. That is not the job of the Attorney General, whose client is the United States not the President.Comparing General Mukasey’s representation of his "client" to lawyers who represent criminals or developers keen on using eminent domain is deeply flawed. The former is dispatched simply: a criminal defendant has a right to counsel according to the Constitution; the same document does not create a right to torture. The latter, too, can be shunted aside. Lawyers who advocate controversial or even detrimental positions do so on behalf of clients who get their days in court. In striking contrast, our Justice Department is acting to deny process. A torture victim can have no redress so long as the courtroom doors remain sealed, Congress can enact no legislative solution so long as memoranda that purport to exploit loopholes in current statutes remain secret, and Congress cannot investigate if its subpoena powers require a writ of mandamus to surmount executive recalcitrance. Do law students protest when professors and lawyers take up unpopular causes? Of course not. We should, however, steadfastly reject the stymying of the judicial process.It is also mistaken to state that General Mukasey’s responsibilities do not include finding waterboarding illegal. When Congress declares torture and cruel and inhuman treatment illegal it should not be required to enumerate every technique it prohibits. A murder statute necessarily bans killing by knife; an anti-torture statute necessarily prohibits torture by simulated drowning. The sole position General Mukasey took during his confirmation that may have merit is his statement that certain circumstances may permit conduct that would otherwise be prohibited. This is, in essence, a necessity defense, and it has some following in the legal community. If General Mukasey feels that some circumstances make torture legal then, as Attorney General, he owes it to Congress to clarify his position so Congress can act accordingly. Constituents cannot lobby for or against policies that remain shrouded. Indeed, who would have thought to lobby to outlaw waterboarding before our anti-torture laws were declared porous?Finally, torture does offend Catholic teachings. Jesuits were subjected to torture in the Star Chamber. It may be correct that Boston College’s Jesuit traditions have been deployed selectively in the past. Speakers who directly contradict Catholic tenets by their actions may have spoken at graduation and may have been given our highest honor, the Founder’s Medal. However, selectivity is not the same as hypocrisy. For some, torture may be a more important and pressing issue than abortion and therefore more worthy of protest. Further, torture permitted by our highest government officials may be more pressing than advocacy of pro-choice positions by those with only a single vote in Congress. If there is failure arising from our Jesuit traditions and General Mukasey’s invitation it may find its source in those who have failed to object in the past and today. Why is it more permissible for people to stay silent all the time in the face of outrages than it is for people to object today when torture is at our doorstep?I object to General Mukasey’s invitation because I believe he has tarnished his record by acting as a member of a relay team in a race to the bottom. He took his position in the wake of a failed Attorney General and has since defined his tenure by continuing the policies of obstruction and secrecy. I object because he was invited only after his record was blackened by his actions as Attorney General. I object because I find torture abhorrent and believe that the platform we have been given enables us to make our voices heard. I object because no man’s resume should give shelter to bad acts and because the legal profession should require a lawyer to resign when his representation actively enables the destruction of human life and dignity.
I was happy to finally read a post such as this on eagleionline after so many posts and debates over General Mukasey’s invitation to speak on campus. So many of these posts and rants have really lacked the factual material or balanced reporting necessary to make a cogent argument about why he shouldn’t have been invited to speak. Worse, they blatently misrepresent what he said in his congressional hearings, and I was happy to see that Guillaume more accurately represented these. (Neither of these critiques applies to you, Austin)I respect the right of students to disagree about his invitation or the Founder’s Medal, and I respect that students and faculty may not agree with the positions of the government in regards to torture etc.. On the other hand, I think it is extraordinarily important to separate General Mukasey’s prior career and his achievements from his current post. He had a very distinguished career both as a litigator and a Judge on the U.S. District Court–and dealt deftly with very difficult issues in both positions (especially on the court). Austin, you mentioned that you were disappointed that he agreed to participate in a "relay race to the bottom"–i see it in a different light: that he was willing to step in at an extraordinarily difficult time in our government’s history to serve his country. He knew going in that it would be an unpopular job and he would be dealing with a lot of the mistakes of this administration, but he was still willing to take the job because he thought he could do it respectably, honorably, and to the best of his ability. Knowing personally the difficulty that people who choose to serve in high government posts face in doing their jobs: criticism for every action, intense scrutiny, and disrespect, I have enormous respect for someone who gets up every day and goes to do his job representing the government to the best of his ability. His actions in zealously advocating for his client (the government) say nothing about his personal convictions or beliefs–they say he is good at his job. As we have heard time and time again, even criminal defendants deserve an advocate and defender. I have no problem with the facebook group, the letters from faculty members and alumni, and the student led discussions and debates about this issue. What I do take issue with, and I hope others will be willing to consider, is what Guillaume mentioned at the end of his post: the attempt by faculty and students to protest or disrupt commencement ceremonies. I come from a family of academics and I have always grown up believing that commencement is a time to celebrate the achievements of the students and future leaders who are going out into the community. It is also a time to celebrate the traditions of academia and of Boston College Law School. I find it extraordinarily offensive when faculty and students make commencement a forum for their political beliefs by standing and turning their backs in the middle of the ceremony to protest the speaker. I was disappointed in Boston College’s reaction to Condoleeza Rice in 2006. I know it is not an unheard of form of protest, and that it has happened at other schools, but for an institution that prides itself on its "Jesuit values" and openly expresses the need for tolerance and understanding in the face of differences and strife to then condone this type of activity is a disappointment. I also think that it ruins the experience for graduating students and family members, as well as other viewers who may not feel as strongly about the issue, or even support General Mukasey. Of course we all have the right to free speech, bu this is not that issue. This is about taking over a ceremony and celebration and making it a statement for a political venue. The ability to openly criticize and question leadership is a bedrock of our society and what makes our cou ntry great–but I just don’t think that commencement ceremonies are the right forum. Write a letter to the editor of the New York Times or Wall Street Journal, write a blog post or comment on the Chronicle of Higher Education’s message boards–but don’t take away from other people’s day. I would encourage members of the BC Law community to think carefully about their actions before commencement and consider the impact of those actions on the larger audience who will be there.
Elise:Thanks for posting your thoughts. I disagree with you about the degree to which we should honor Attorney General Mukasey by virtue of his decision to serve his country when the Administration is under fire. Before I do though, I want to say that protests at graduation are less cut and dry for me. I would hate to see my graduation sullied by protest, although I would also acknowledge that for many the sullying effect had an earlier source: the invitation to speak. I am especially aware of how the issue is different for students, who are leaving the campus, and faculty who will remain its stewards.As for Mukasey’s decision to serve in a difficult time, I agree that he probably knew what he was getting in to. It would have been ridiculous to believe his road would be smooth. With that in mind, I would ask you, why do we then owe it to him to provide something he never expected? Did he believe his rocky tenure as Attorney General would result in controversy-free Commencement speeches?On another front, once again I need to distinguish between zealous representation of a criminal defendant and zealous representation of a possibly criminal government. A zealous defense is essential for a person subjected to the awesome prosecutorial force of a state or federal executive branch. Even a guilty person should be protected from overzealous prosecution. I find no support for the position that an overzealous executive branch is also in need of a lawyer willing to set aside his views on the underlying crime. Indeed, I believe a lawyer has a duty to resign if his representation perpetuates criminal acts or lays the groundwork for futre illegal acts. A criminal attorney should not counsel his client how to break the law and the Attorney General should not cling to legally tenuous assertions in order to preserve the Administration’s claimed prerogative to torture.I think Mukasey’s representation of our federal government has bled into a representation of the Administration, which is a perversion of his office. Further evidence of this fact was recently provided when the Attorney General declined to follow federal law regarding contempt citations from Congress. By law he is required to submit the citations to a grand jury, which would then pass on their sufficiency. After that a court could rule on any issues of executive privilege. Mukasey has refused to do this and as a result a civil suit is to be filed against him to require him to carry out his duties.In both cases I believe Mukasey sacrifices respect for his service because he is failing to serve. Mukasey knew his road would be rocky and has acted in ways that can only make it rockier. I am unclear why this combines into a duty on our part to withhold criticism.Finally, I absolutely want to reaffirm how strongly I appreciate the debate on this matter. I respect those with whom I disagree and reading back over my language I am aware that occasionally my arguments may grate. So I should say that I understand that those who disagree may simply place a higher value on respect or deference to those who take on enormous tasks than I do. That is a fair position and one that finds lots of support. I just disagree, at the very least when torture and the separation of powers is concerned.