Former Bush Attorney General Michael Mukasey Controversial Choice As UCONN Law School Visiting Scholar

Law schools, like all academic institutions, should be places that promote freedom of speech and thought; that encourage, indeed provoke, students to think deep and hard about difficult issues and to consider alternate points of view.  They should not shy away from inviting controversial speakers to their campuses.  But when they do, students, faculty, administrators, and the public at large, should not be reluctant to challenge the speakers’ expressed views.  The best responses to disagreeable speech are tough questions and opposing speech, not banning the speaker.

The Honorable Michael B. Mukasey, a former federal judge and, more importantly, President George W. Bush’s Attorney General from November 2007 to January 2009, is the 2013 Day Pitney Visiting Scholar at UCONN School of Law.  He will speak at the law school on Tuesday, April 16, 2013.

Mr. Mukasey is a controversial public figure because he refused to take a position on the status of waterboarding as torture.  (During his confirmation hearing he refused to state that waterboarding is torture.)  He is controversial because he made troubling statements about the role that waterboarding played in obtaining intelligence that led to the location and killing of Osama bin Laden.  (He claims that waterboarding produced such intelligence.)  And he is controversial because he made ridiculous groundless accusations about President Obama in the Wall Street Journal and on Sean Hannity’s show on Fox News.  (He told Hannity that the President had CIA Director Leon Panetta prepare a “highly lawyered” memo that would have thrown a high-ranking military officer under the bus if the bin Laden mission failed.)

I respectfully dissent from his selection as the Day Pitney Visiting Scholar. (Disclosure: I have been a proud member of the UCONN law school adjunct faculty since 2003.)

Prior to his nomination as our nation’s 81st Attorney General, Mr. Mukasey had a distinguished career as a lawyer in private practice, as a federal prosecutor, and as a federal judge in New York (from 1988 to 2006).   Although he was a conservative Republican when President Bush nominated him to become Attorney General (following Alberto Gonzalez’s resignation), his nomination enjoyed the support of New York’s liberal Democratic senator, Charles Schumer, who in 2003 even recommended him to President Bush for a seat on the U.S. Supreme Court.

Although Mr. Mukasey had issued controversial rulings as a federal judge, in my view the real controversy began during his Attorney General confirmation hearings.  On October 18, 2007, the second day of those hearings, Rhode Island Senator Sheldon Whitehouse asked him a straightforward question: Is waterboarding constitutional?  Here’s how the conversation went (with my parenthetical editorial comments):

MUKASEY:  “I don’t know what is involved in the technique.”  (Not a promising start from someone seeking to become the nation’s top law enforcement officer.)  “If waterboarding is torture, torture is not constitutional.” (Thank you, Mr. Mukasey, for that “if, then” statement, which reveals nothing substantive about your views on whether waterboarding is torture.)

WHITEHOUSE: “If it’s torture. That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding…is constitutional?”

MUKASEY: “If it amounts to torture, it is not constitutional.” (There’s that “if, then” dodge again.)

WHITEHOUSE: “I’m very disappointed in that answer. I think it is purely semantic.”

MUKASEY: “I’m sorry.”

Mr. Mukasey had similarly unilluminating exchanges with senators Dick Durbin and Patrick Leahy.

Mr. Mukasey continued to hedge on the issue even after he was confirmed.

Waterboarding IS torture and torture IS illegal and unconstitutional. Federal law, the Torture Act in particular, defines torture as the intentional infliction of “severe physical or mental pain or suffering” upon a person within the defendant’s custody or control.  Mental pain or suffering resulting from torture is “severe” if it is “prolonged.”

The Constitution Project–a non-partisan body that looked into this issue in great depth–just released a 575-page report of its investigation.  The following statement appears in bold print on page three of the report :

Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture.

I find it amazing that I still have debates with people over this issue. The fact that there are some individuals who continue to deny that waterboarding is torture does not make the issue one on which reasonable minds can disagree. Although there may be two sides to every story, sometimes one side is so weak that it cannot be taken seriously. I found it disturbing in October 2007–and still find it disturbing today–that a nominee for the Office of Attorney General refused to come right out and say that waterboarding is torture.

When Mr. Mukasey speaks at UCONN later this month, I hope someone asks him what his position is on the subject today.  And he if hedges, he should be pressed on the issue.  And if he says that he did not want to give a direct answer because he feared it might expose individuals who had engaged in waterboarding to legal liability, well, that is a lot of hooey.  As Scott Horton explained in Harper’s Magazine, he wasn’t protecting those individuals, who have immunity from prosecution for actions taken in good faith in reliance on legal advice.  He was protecting President Bush, Vice-President Dick Cheney, Donald Rumsfeld and a few other high level officials who authorized the use of waterboarding.

My next problem with Mr. Mukasey stems from an article he wrote for the Wall Street Journal on May 6, 2011.  In the article he claimed that waterboarding and other “enhanced interrogation techniques” (a euphemism for torture) produced the intelligence that led to the killing of Osama bin Laden:

Consider how the intelligence that led to bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.

Mr. Mukasey criticized the Obama administration for abandoning such interrogation techniques.

Senator John McCain has flatly stated that Mr. Mukasey’s statement contradicts the Senate Intelligence Committee’s 6,000 page report on the Bush administration’s use of enhanced interrogation techniques, which concluded that they did not produce the information that led to bin Laden.  John Brennan, President Obama’s Director of the CIA, recently reaffirmed the veracity of that statement during his confirmation hearings. Here is an exchange between Senator Carl Levin and Brennan during those hearings:

LEVIN: [A]re you aware of any intelligence information that supports Mr. Rodriguez’s claim that the lead information on the courier came from [torturing] KSM and al Libi?

BRENNAN: I am unaware of any. […]

LEVIN: Michael Hayden, former CIA director said that, quote, what we got, the original lead information, began with information from CIA detainees at black sites. Chairman —the Chairman and I issued in the same statement the following, that the statement of the former Attorney General, Michael [Hayden], was wrong. Do you have any information to disagree with our statement?

BRENNAN: I do not […]

LEVIN: Michael Mukasey, former attorney general [in] The Wall Street Journal: “Consider how the intelligence that led to bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information —including eventually the nickname of a trusted courier of bin Laden.” Our statement, that of the Chairman and myself, is that that statement is wrong. Do you have any information to the contrary?

BRENNAN: Senator, my impression earlier was that there was information that was provided, that was useful and valuable. But as I have said, I have read the first volume of your report which raises questions about whether any of that information is accurate.

LEVIN: I am no referring not to the report, but the statement Chairman Feinstein and I issued on April 27th, 2012. We flat out say that those statements are wrong. Do you have any basis to disagree with us?

BRENNAN: I do not.

Again, when Mr. Mukasey speaks at UCONN this month, I hope folks try to pin him down on the factual basis of his assertions.

Lastly, Mr. Mukasey wrote another article in the Wall Street Journal on April 30, 2012, in which he accused President Obama of having Leon Panetta, his CIA Director, prepare a “highly lawyered” memo that would have blamed a military official if the SEAL Team 6 raid that killed Osama bin Laden had failed.  Mr. Mukasey appeared a few days later on Sean Hannity’s “fair and balanced” show on Fox and repeated the accusation.  He wrote (and said):

There was a memo from Leon Panetta that described the authority that was given to [Admiral Bill] McRaven, and it was to proceed according to the risks–only according to the risks that had been outlined to the President, and if he encountered anything else he had to check back. And you better believe that if anything else had been encountered, and the mission had failed, then the blame would have fallen on McRaven.

Here’s the text of the “highly lawyered” memo:

April 29, 2011 / 10:35 AM. Memo for the record — Received phone call from Tom Donlon (sic) who stated that the President made a decision with regard to AC1. The decision is to proceed with the assault. The timing, operational decision making and control are in Admiral McCraven’s (sic) hands. The approval is provided on the risk profile presented to the President. Any additional risks are to be brought back to the President for his consideration. The direction is to go in and get bin Laden and if he is not there, to get out. Those instructions were conveyed to Admiral McCraven (sic) at approximately 10:45 AM.

Highly lawyered?  Please, it was handwritten.  Secret effort to shift blame to Admiral McRaven if raid failed?  Give me a break.  Giving the military “operational decision-making” authority is not a political “pass the buck” move; it is what an intelligent Commander-in-Chief, particularly one without military training and experience, does.  What did Mr. Mukasey expect?  That POTUS would personally direct every step of the bin Laden raid as it unfolded from the White House situation room?  Maybe in a Harrison Ford movie, but not in the real world.  If the raid had failed, it most probably would have destroyed Obama’s chances for reelection.   No matter what the outcome of the raid, the President was going to own it.

In sum, notwithstanding my dissent from his selection as the 2013 Day Pitney Visiting Scholar, I think bringing Mr. Mukasey to UCONN Law School is a fine idea–as long as people in the audience are prepared to ask him some tough questions and challenge him on positions and statements like the ones described above.  I think a little cross-examination–respectfully, of course–is in order.