It is not exaggeration to say that the United States Department of Justice is among the handful of our nation’s most important institutions. It is the fulcrum of our rule of law.
The department must be above reproach. It must enforce our laws without fear or favor. It must be the place the courts, the Congress and the American people look to without hesitation for the most unflinching recitation of fact and the most reliable construction of law. Creativity is welcome — it is the department’s proud boast always to be home for some of the world’s most creative legal minds. Defense of executive prerogatives is also essential — for the department is not the servant but the peer of the judges and lawmakers before whom it appears, with its first fidelity to the Constitution. Creativity, however, is not invention, and prerogative is not partisanship.
The department must foremost be the Department of Justice. Its emblem is integrity. We can argue about where the law should take us, in what direction it should evolve. We must first, however, be able to know what it is. For that, we must be able to rely without question on the department and its leader, the attorney general.
President Bush is about to select a new attorney general at a particularly tempestuous time. In today’s Washington, even national security has not been spared from our fulminating politics. In the cross-fire, we need stalwart leadership of incontestable competence and solid mooring in the department’s highest traditions. Without it, a growing crisis of confidence will grip not only the courts but field prosecutors across the nation.
To address such a crisis, the president is fortunate to have several able candidates. One I know particularly well, though you may not, would instantly restore the department’s well-deserved reputation for rectitude, scholarship, vision and sober judgment. He is Michael B. Mukasey.
I had the privilege of appearing before Judge Mukasey for nearly three years, from 1993 into 1996, when, as an Assistant U.S. Attorney in the Southern District of New York, I led the prosecution of Sheikh Omar Abdel Rahman and eleven other jihadists who had waged a terrorist war against the United States — bombing the World Trade Center, plotting to strike other New York City landmarks (including the United Nations complex, the FBI’s lower Manhattan headquarters, U.S. military installations, and the Lincoln and Holland Tunnels), and conspiring political assassinations against American and foreign leaders.
The case was bellwether for 9/11 and its aftermath, presenting all the complex and, at times, excruciating issues we deal with today: the obscure lines a free society must draw between religious belief and religiously motivated violence, between political dissent and the summons to savagery, between due process for accused criminals with a right to present their defense and the imperative to shield precious intelligence from incorrigible enemies bent on killing us.
The trial was probably the most important one ever witnessed by … nobody. In an odd quirk of history, our nine-month proceeding began at the same time as, and ended a day before, the infamous O.J. Simpson murder trial. While Americans were riveted to a televised three-ring circus in California, Judge Mukasey, in his meticulous yet decisive way, was demonstrating why our judicial system is the envy of the world: carefully crafting insightful opinions on the proper balance between national security and civil liberties, permitting the government to introduce the full spectrum of its evidence but holding it rigorously to its burden of proof and its ethical obligations; managing a complex litigation over defense access to classified information; and developing jury instructions that became models for future national-security cases.
All the defendants were convicted, and the sentencing proceedings, complicated by the need to apply novel federal guidelines to a rarely used, Civil War era charge of seditious conspiracy, ended in the imposition of appropriately lengthy jail terms. No one, however, could contend that the case had not been an exemplar of our system at its best. Indeed, in an unusual encomium, the Second Circuit Court of Appeals, upon scrutinizing and upholding the judge’s work, was moved to observe:
The trial judge, the Honorable Michael B. Mukasey, presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.
No one should have been surprised. By the time the Blind Sheikh’s trial was assigned to him, Judge Mukasey had already forged a reputation as one of America’s top trial judges. (In my mind, he is peerless.) That was so because he was also one of America’s most brilliant lawyers. From humble beginnings in the Bronx, he had earned his bachelor’s degree at Columbia before graduating from Yale Law School in 1967. As a judge, he tolerated nothing but the best effort from prosecutors because he had, himself, been a top prosecutor. He well understood the enormous power in the hands of young assistant U.S. attorneys, the need to temper it with reason and sound judgment. He grasped implicitly and conveyed by example that the great honor of being a lawyer for the United States Department of Justice is that no one gets, or should expect to get, an award for being honest and forthright. It is a realm where those attributes are assumed.
In 1988, Michael Mukasey left a lucrative private law practice when President Ronald Reagan appointed him to the federal bench. He was exactly the credit to his court and his country that the president had anticipated. Quite apart from terrorism matters, he handled thousands of cases, many of them high-stakes affairs, with skill and quiet distinction. In his final years on the bench before returning to private practice, he was the Southern District’s chief judge, putting his stamp on the court — especially in the aftermath of the September 11th attacks. Through the sheer force of his persistence and his sense of duty, the court quickly reopened for business despite being just a few blocks away from the carnage. Indeed, it never really closed — Judge Mukasey personally traveled to other venues in the District to ensure that the court’s vital processes were available to the countless federal, state and local officials who were working round the clock to investigate and prevent a reprise of the suicide hijackings.
Characteristically, the judge ensured that the Justice Department was able to do its vital work in a manner that would withstand scrutiny when the heat of the moment had cooled. Judges, himself included, made themselves available, day and night, to review applications for warrants and other lawful authorization orders — no one would ever claim that in his besieged district, crisis had trumped procedural regularity. And as investigators detained material witnesses and scrambled to determine whether they were mere information sources or actual terror suspects, Judge Mukasey made certain that there was a lawful basis for detention, that detainees were represented by counsel fully apprised of that basis, and that the proceedings were kept on a tight leash — under strict judicial supervision, with detainees promptly released unless there was an independent reason to charge them with crimes.
Judge Mukasey’s mastery of national security issues, reflecting a unique fitness to lead the Justice Department in this critical moment of our history, continued to manifest itself after 9/11. He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch’s wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen’s constitutional rights to counsel and to challenge his detention without trial through habeas corpus. Later, in accepting the Federal Bar Council’s prestigious Learned Hand Medal for excellence in federal jurisprudence, Judge Mukasey spoke eloquently of the need to maintain the Patriot Act’s reasonable national security protections. More recently, he has written compellingly as a private citizen with unique insight about the profound challenges radical Islam presents for our judicial system.
At this moment in time, the nation would be best served by an attorney general who would bring the department instant credibility with the courts and Congress, provide a needed shot in the arm for prosecutors craving a reminder of the department’s proud traditions, and reassure the public of the administration’s commitment to the department’s high standards. There are precious few people who fit that bill, and of them, Michael Mukasey may be the least well known nationally. But he is as solid as they come. Our country would be well served if he were asked, once again, to answer its call.