Former AG Mukasey: Courts Aren’t Up To The Task

Sitting on the bench at 500 Pearl Street, a District Court judge about to retire to the pasture of Biglaw equity, Michael Mukasey showed little reluctance to believe in the power of the federal court system to handle whatever was thrown at it.  Sitting as former Attorney General of the United States, even if only for a brief spell between a disgraced predecessor and new administration, he has a different view.

From his op-ed in the Wall Street Journal, Mukasey espouses a position that will shock those who knew him once as fairly reasonable, level-headed jurist. 

The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

Though unsaid, the counterpoint to the overwhelming difficulties in trying cases of alleged terrorism in the courts of the United States is, of course, nothing less than our most basic law, the Constitution.  The bottom line is whether the rules by which Americans determine guilt or lack thereof give way in the face of difficulties.  What aspects of our legal system crumble in the face of terrorism trials?

  • deputy U.S. marshals must be recruited from other jurisdictions
  • jurors must be selected anonymously and escorted to and from the courthouse under armed guard
  • judges who preside over such cases often need protection as well

In other words, the trials present some logistical issues relative to security.  To a former Attorney General, the foundation of our legal system must fall in the face of a few logistical issues, oddly the same ones that are raised by a variety of prosecutions ordinarily handled in federal courts without so much as a blink, such as organized crime, major drug kingpin cases and the occasional Latin American dictator.  Yet when it comes to alleged terrorists, the courts can’t handle it.

All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

It’s true that the federal court system is overburdened, largely because of low rent marijuana and basic gun cases that have been funneled from state courts to federal as Congress criminalizes the most banal of crimes lest the local lawmakers get to take all the credit for being tough and saving humanity from the scourge of pot smoking in Washington Square Park.  But Judge Mukasey makes no call for the end to overcriminalization of state offenses to clear the federal court dockets so that the judges can handle the big stuff.

Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.

Two forms of terror, both equally threatening the sanctity of our way of life.  Both revolve around courthouses attracting terrorists, one type wearing the garb of Al Qaeda and the other wearing three-piece suits.  One might propel rockets toward the fortress-like structure like structure.  The other will deluge it under a “wave” of 20 pound lawyer bond.

Apparently, Judge Mukasey lacks faith in our nation’s ability to protect its courthouse.  As attorney general, he may have seen information that the rest of us haven’t, and possess a firmer idea of the limits of law enforcement.  Of course, if someone is intent on wreaking havoc on American soil, there are shopping malls across the country that would seem far better targets if the goal is to disrupt our way of life.  If we can’t protect a courthouse, then there is no hope for the holiday shopping season.

But Mukasey’s disdain for law, as flagrantly shown by his fear of lawyers doing lawyerly-type stuff, is the most disheartening allegation coming from someone who, for a brief period of time, was the top lawyer in the United States.  Does a man entrusted with defending the Constitution really harbor such overt hatred of it?  As he complains about a juror who, when pushed to the limit, found himself unable to impose death, was AG Mukasey unable to believe sufficiently in the viability of our Constitution to protect it, as his oath demanded?

Moreover, it appears likely that certain charges could not be presented in a civilian court because the proof that would have to be offered could, if publicly disclosed, compromise sources and methods of intelligence gathering. The military commissions regimen established for use at Guantanamo was designed with such considerations in mind. It provided a way of handling classified information so as to make it available to a defendant’s counsel while preserving confidentiality. The courtroom facility at Guantanamo was constructed, at a cost of millions of dollars, specifically to accommodate the handling of classified information and the heightened security needs of a trial of such defendants.
What happens to a person in the hallways of power when they are told the secrets of a nation, they are made an “insider” to the nasty truths that the elite believe save the ignorant groundlings from themselves?  To call the secret courtroom of Guantanamo a star chamber is trite.  To elevate it to a necessity because it was built at a cost of millions of dollars is backward; people of like-mind to Mukasey threw away money to build their secret courtroom without asking Americans if they minded the purchase of a few more $300 toilet seats. If only they paid our executive branch officials a little more, we could recoup the waste from their pensions.

Rarely has a former high government official, no longer in need of toeing the party line to keep his seat at the state dinner table, shown so little belief in his Country.  Even more insulting is how trivial, how utterly insignificant, the reasoning behind his disregard for the basic tenets that justify his Country’s existence.  What’s next, openly disavowing the Bill of Rights because it’s raining outside?

There is much to question about the former administration’s belief that the United States of America is worthy, based upon its fundamental philosophy, of the claims of greatness used to justify its disregard of our basic freedoms and rights.  But I knew Michael Mukasey as a judge sitting in a black robe at 500 Pearl Street.  I thought well of him, thought that he was a man of integrity.  I never would have believed that he would sell out the Constitution to save a few pennies, or because we would have to pay some deputy marshals overtime.

Was this the same Michael Mukasey who ruled on my cases in the Southern District of New York?  Did he secretly hate the Constitution this much while I trusted him to do his best to preserve my clients’ rights?  If so, my clients were cheated, and they deserve another shot before a judge who believes in the American system of criminal justice.

One thought on “Former AG Mukasey: Courts Aren’t Up To The Task

  1. John R.

    I never appeared before him, but personally, I never had a good impression of Mukasey. He seemed to me to have no real depth.

    It appears he has no military background. I have observed that judges and lawyers who encounter the military mindset later in life are overly impressed with it, and what they learn in a brief and superficial exposure tends to overwhelm their reasoning abilities. Mukasey’s rather poorly thought out positions are a case in point.

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