Mukasey or the Muck
He can make the country a better place--if they'll let him.
BY DANIEL HENNINGER
Thursday, September 20, 2007 12:01 a.m. EDT
Judge Michael Mukasey's acceptance of George Bush's offer to become his third attorney general brought to mind the title of a relatively obscure 19th century French novel called "La Bas," which means "down there."
"La bas," of course, would be modern Washington. "Down there" the denizens push a great grinding wheel that circles endlessly. George Bush proposes. Harry Reid repudiates. Into this spun-down place comes a nominee for attorney general who is said to have "little Washington experience." Let us not dwell on the latter-day meaning of that phrase. We shall posit, however, that Washington needs Judge Mukasey more than Judge Mukasey needs Washington.
In the spirit of the hallowed Don Quixote, your columnist will now pick up his lance, mount his old steed Rocinante and make his once-a-year rush toward the Beltway windmills. The song goes like this: If they'll let him, Michael Mukasey could make Washington and the nation a better place.
The nation's betterment is the easier task, so that first.
At this moment in the history of the country's needs, what it needs, perhaps even more than Hillary Clinton's Plan B for health care, is a blueprint to protect itself from the uncounted Islamic terrorists who think God wants them to blow up Americans. Killing Americans was explicitly the goal of the terrorists arrested Sept. 5 in Germany, where they had targeted the U.S. air base at Ramstein, Frankfurt's airport and hotels.
The plan proposed by the Bush administration to meet this threat includes the Patriot Act, the National Security Agency's Terrorist Surveillance Program (the warrantless wiretap/FISA controversy), and the military commission trials for Guantanamo prisoners. Each of these elements bogged down in sniper wars between Congress's Democrats and the Bush administration, culminating in time on the rack for Attorney General Alberto Gonzales (the U.S. attorney firings was merely the parliamentary arrest warrant).
In 1995--before the Patriot Act--Judge Mukasey sat for nine months on the bench of a courtroom in Manhattan while the U.S. tried Omar Abdel Rahman, the "blind sheikh," and 11 other men for a conspiracy to blow up the Holland and Lincoln tunnels, the New York building housing the FBI and other landmarks. At sentencing, Judge Mukasey explained Sheikh Rahman's guilt:
"You were convicted of directing others to perform acts which, if they had been accomplished, would have resulted in the murder of hundreds if not thousands of people, and brought about devastation on a scale that beggars the imagination, certainly on a scale unknown in this country since the Civil War, if not ever, and would have made the [1993] World Trade Center outrage seem almost insignificant by comparison."
Judge Mukasey's statement reflects an understanding of what some of us argue is this threat's unique nature. Omar Abdel Rahman and other Islamic terrorists do not represent a threat like Ted Bundy, the serial killer in the 1970s who murdered at least 30 women; instead this threat more resembles, as Judge Mukasey also said that day, "militant fascism that failed and militant communism that failed."
Appeals court Judge Richard Posner has written in The Wall Street Journal that "five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray." His own ideas often overlap with recommendations Judge Mukasey also has made on this page, such as disabusing ourselves of the notion that the U.S. criminal justice is a first, second or even third responder.
My point is not that Judge Mukasey's view on these matters should simply prevail, though that's fine by me. It is that his knowledge and stature offer an opportunity to raise national security from the muck and trash talk of "experienced" Washington. Most of the time, who cares? But right now isn't most of the time.
Recall that this summer, National Security Director Michael McConnell was running around to whoever would listen to deliver what was truly a cri de coeur that our terrorist surveillance ability had eroded and needed Congress's immediate attention. Congress partially addressed the problem in August by passing a warrantless wiretap law that permits surveilling terrorists overseas. That's good, but it amply reflects how the seven-year gang war between Democrats and this president gives the impression that winning their war is more important than winning our war on terror.
Gaze back to the stillborn Olson nomination last week. Briefly, Ted Olson is eminently qualified to restore the Justice Department, argue the administration's position on the law and terror, and do so in perfect comity with the other side. His name floats out, and from every Democratic tongue falls "partisan!" Have we become Francoist Spain? The word "partisan" is used at every turn now to leave the impression that all these anti-terror measures and anyone associated with them have sprung solely from wires attached to the power-mad heads of Bush and Cheney. In fact, arguments on behalf of executive authority in dire times trace back to Hamilton.
Judge Mukasey knows this. The staff of the Senate Judiciary Committee Democrats know this (it's taught in law schools, isn't it?). The Mukasey nomination offers "experienced" Washington a rare second chance to let the American people see them fashion an anti-terror structure suited to that precise purpose, rather than what is going to happen in November 2008.
But again, these sentiments were preordained as quixotic. The first response of Sen. Patrick Leahy, grim chamber-master of the Judiciary Committee, was to insist that the Mukasey nomination is most of all about a "document search." This, of course, is the momentous U.S. attorneys struggle.
As to how the Mukasey nomination might better Washington itself, two words: Scooter Libby. What exactly was it about, running as a central issue in the life of Washington from mid-2003 to mid-2007? It lasted four years on dreams that it would lead to Dick Cheney or Karl Rove. This is not the politics of a great power but of dying Rome, a political class too disorganized to protect its people. One lesson of the Libby case is that no serious outsider would put a life's work and reputation at risk to come to Washington--la bas--if that's how low the bar is set now for destruction. Even with the country manifestly at risk, why bother?
Michael Mukasey stepped up. Will they?
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Thursdays in the Journal and on OpinionJournal.com.
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