National Review Article - Michael Mukasey

August 10, 2009

Brainy Bronx Kid against Terror - A conversation with Judge Michael B. Mukasey, George W. Bush's last attorney general

By: Jay Nordlinger

Michael Mukasey is a modest man, not a horn-tooter, and you may have missed his tenure as attorney general. He served from November 2007 to January 2009. In other words, he was President George W. Bush's last attorney general (succeeding John Ashcroft and Alberto Gonzales). Mukasey is not a great talker to the press, but he has plenty to say -- particularly about how America is coping, or should cope, with what used to be known as the War on Terror. (These days, the government prefers "Overseas Contingency Operations" -- actually, without the capital letters.)

Mukasey is back in his hometown, New York, where he is a partner at the law firm of Debevoise & Plimpton. That is in Manhattan. He did not start out in Manhattan, but rather in the Bronx. He was born there in 1941, and grew up in a mixed neighborhood: Jewish and Italian. Talking in his office, I ask whether he still feels like a Bronx kid. He says, "I am a Bronx kid. But one who always wanted to live in Manhattan." That was a sign, he says, that "you had arrived."

Mukasey is Jewish, his father an immigrant from Belarus. Was that name, Mukasey, ever mistaken for Irish? "Oh, yeah: by the parents of several Jewish girls I went out with." The name, incidentally, is pronounced -- at least by this Mukasey -- "Myoo-KAY-zee."
He went to Columbia College, where he majored in American history. He was editorials editor for the Columbia Daily Spectator. And what were his politics? "Oh, God, pretty liberal, I think." During Mukasey's confirmation hearings for attorney general, Sam Brownback, the conservative senator from Kansas, pulled out a specimen from the past. It was "one of those sneering editorials," says Mukasey, "that talked about how wrong it was to prosecute some doctor for performing abortions, how it was none of anybody's business except his and the mothers', and this, that, and the other -- the usual arguments." And "the only conservative editorial I remember writing had to do with the Cuban Missile Crisis, and how Kennedy was right to draw the line."

Mukasey voted for Humphrey in 1968. He did not vote for the Democratic nominee four years later (McGovern). That is a familiar story, told by many a Democrat-turned-Republican.

Mukasey went to Yale Law School, where one of his professors was Robert Bork: "a commanding presence," says Mukasey. Some 20 years later, Bork underwent confirmation hearings for the Supreme Court, ultimately being denied a place on that court. How did Mukasey find the hearings? "Stomach-turning."

After law school, he worked in New York, serving as an assistant U.S. attorney, as well as practicing privately. His clients included at least two notorious characters: Roy Cohn and Claus von Bülow. Mukasey became close to Rudolph Giuliani, and, in fact, would swear him in both times as mayor -- once in Mukasey's own apartment.

Mukasey was a judge then, of course. In 1988, Reagan appointed him to the federal court in the Southern District of New York. While on the bench, Mukasey presided over several cases connected to the jihad -- to what some would later call "Islamofascism." Most prominently, he oversaw the trial of Omar Abdel Rahman, better known as the "blind sheikh" -- a man who was determined to bomb any number of important buildings in New York. For a period, Mukasey had a detail of federal marshals, owing to the potential threats against him.
As you can imagine, he has decided views about the role of law enforcement in the War on Terror -- a subject of great controversy, and a dividing point between "conservatives" and "liberals," to use broad terms. He remembers an early terror trial, some years before 9/11 -- not a trial he was presiding over. "I was walking back from lunch with one of my colleagues, the late John Sprizzo. And there were all of these marshals with their long arms, vests, and so on. And Sprizzo says, 'What the hell are we doing here? This isn't a law-enforcement problem, this is a military problem.' . . . I thought this was a stunning insight."

Mukasey says that law enforcement ought to have a "support role," but not a "principal role" -- such as the military or intelligence agencies should have.

He resigned from the federal bench in 2006, because, he explains, "the ends didn't meet." In other words, "I had to make some hard choices about how my family was going to live." He went back into private practice, after his 18-year judgeship. I ask whether the United States should pay its federal judges more. He says, "Probably. But should salary be an attraction? I don't know about that. And if we pay them more, we ought to select them more carefully."

In the fall of 2007, President Bush turned to Mukasey to ask him to be attorney general. He was confirmed, of course: but a lot of Democrats voted against him. Forty of them. Seldom has an AG nominee had so many votes against him. Did that sting? "No," says Mukasey. The Democrats' main complaint was that Mukasey would not say whether he regarded waterboarding as torture, not being privy to the full range of facts that would be necessary to form such a judgment. Interrogators' careers were involved. Plus, why tell the enemy what you are prepared and not prepared to do? Mukasey says, "I remember thinking at the time, 'Okay: I got a high-class problem. If I get confirmed, I get to be attorney general of the United States. If I don't get confirmed, I get to go back to New York and make money and be known as the guy who was nominated and didn't make it'" for reasons of principle.

There was also this wrinkle: Days before his confirmation hearings, he had a scare concerning prostate cancer. Tests indicated that he had the disease. That made Senator Leahy et al. a little less daunting -- a little less important. In the end, he did not have cancer, and he was confirmed as AG into the bargain.

He arrived at Justice "at a particularly stressful time for the department," he says. "Reputedly, morale was low, there was a fog of scandal, and so on and so forth." His idea was "to get people doing what they do on a day-to-day basis, making decisions based on the law, and not worrying about distractions," while he himself kept a relatively low profile -- letting those who accomplished something take credit for it, rather than "going out and being the one to announce the big arrest or whatever."

Day in, day out, he dealt with the myriad legal issues surrounding the War on Terror. A familiar charge from the Left -- and sometimes from a particular Right -- is that Bush & Co. sacrificed civil liberties for the sake of national security. This is nonsense, says Mukasey. And isn't it interesting that "people who complain about intrusion on civil liberties are not complaining about what you go through at the airport"? "I've never heard someone who describes himself as a liberal complain about what's going on at the airport. They hear about wiretapping and electronic eavesdropping and so on, and they think the government is spying on them or their friends or something." Mukasey asks people to consider the unreason of this.

"Worldwide, there are 12,000 FBI agents" -- not so large a number. And there are only so many who work in the CIA or related agencies. "The nightmare of all those people is exactly the same: that there's going to be another September 11th. The one thing they want to prevent is another strike. All those people go to work every day petrified at the thought" that another attack could occur. "Given that, what use do they have for listening in on your political conversations?" Besides which, "people are saying the most noxious things about people they disagree with" -- including George W. Bush, including Michael Mukasey. They are not shy. And they flatter themselves that "they're doing something daring or brave."

Mukasey has a dim view of the New York Times and its exposure of clandestine programs. Bush called such exposure "disgraceful"; Mukasey agrees. He also says that exposure of this type does some unknowable degree of harm: because intelligence surely dries up. Asked what the role of the press should be in the War on Terror, he says that the press should take an adversarial position against the government when it must, but not be "reflexively adversarial." And "if you want to take an adversarial position against someone, go take an adversarial position against the Saudis. Do something really brave, like going to Riyadh to report on how women lead double lives," or "going to Syria to report on anything."

How about Guantanamo Bay, that symbol of draconian, un-American American conduct? "It compares favorably with a medium-security federal detention facility in the United States." And "the guards there are subject to unbelievable abuse. They wear plastic face shields whenever they have to go in or near a cell, because of what's thrown at them: feces and urine and cocktails of various bodily fluids." Journalists are free to go down there and inspect Gitmo for themselves. "But all of a sudden people develop budgetary problems or something" when such a trip is proposed.

Like most people who have held key positions in the War on Terror, Mukasey warns against complacency. He also says that no one should underestimate the ability of jihadists to do innocent people harm. Imagine that the 9/11 plotters had been exposed and caught, before carrying out their attacks. The reaction would have been "scoff, mock, scoff, mock," says Mukasey. "Some guy in a cave thinks a bunch of guys with box cutters are gonna get on airplanes and bring down buildings? Oh, come on. That's absurd. Grandiosity!"

With the former vice president, Dick Cheney, Mukasey believes that certain of President Obama's policies have increased the risk to the United States. Take what is happening in the intelligence agencies. There is a "demoralization," a new mindset that makes people "much more wary than they were before, much less inclined to get into this work in the first place, much more inclined to get out when they can, and much less inclined to push" -- to push for answers to terrorist puzzles. These people walk very gingerly, feeling they may be investigated or even prosecuted. This is also an era in which we are reading terrorists, apprehended on some foreign battlefield, Miranda rights. I remark to Mukasey that some of us find this "demented." Yes, "demented," he says -- "and Obama himself once scoffed at the idea of doing this."
Mukasey's view of the president he worked for? "A man very good at making decisions, not as good as he should have been, or as one would have hoped he would be, at making the case for those decisions." In his personal dealings with Bush, "I found him very insightful," and also possessed of "a nearly infallible bullshit detector. I would not ever want to try to sail one past him, or go into a meeting unprepared."
Speaking of his time in Washington more broadly, Mukasey says that "my experience left me very grateful that the people in the legislature do what they do and that the people in the executive do what they do, because if the people in the legislature did what the people in the executive do, all would be lost." An elaboration: "If all you do for a living is pronounce, you can strike any pose you want, as long as it sounds good." In the executive branch, "you have to be serious, and make decisions that affect events and lives." This responsibility should sober anyone up.

In the course of our interview, I notice framed photos behind Mukasey's desk. They are not of family. One is of Orwell. Another is of Robert Jackson, the Supreme Court justice who served from 1941 until his death in 1954. (He had also been attorney general.) In fact, there are two pictures of Jackson: a portrait, and one of him in action as prosecutor at Nuremberg. These photos obviously say a lot about what Mukasey believes. Orwell described his twin concern as "law and liberty." Taking off from that, the historian Robert Conquest describes himself as neither a conservative nor a liberal but one concerned with "a law-and-liberty culture." As for Jackson, he is probably best remembered as the guy who said that the Bill of Rights was not a "suicide pact."

Mukasey is gravely concerned about the state of things today, but he wants to put his words carefully, not alarmingly. He says, "I'm not eager to find out how much this country can take" -- how much disunity, for example, and how much casualness about assorted threats.
Back when Democrats were holding up Mukasey's nomination, Bush summoned reporters to the Oval Office to complain that the judge was "not being treated fairly." He also wanted to point out that some of us had "lost sight of the fact that we're at war." Mukasey has not lost sight, and, although he is reluctant to make a public splash, maybe he should -- he is a man for these times, whether in power or not.