Taking Mukasey to Task

Here in Wonky World, op-eds are the bread and butter of our daily lives. We scan them every day to see what other wonk-types say, comment on them on our personal or institutional blogs, and every once in awhile we get our shot at the big-time -- getting published in a major U.S. newspaper or even showing up on TV.

But, more often than not, the op-eds themselves are pretty mediocre fare. Oh, sure, some research assistant got the author some juicy stats on crime figures or Ag subsidies, but most just fall into the recesses of your mind after you read them. Nothing against the authors, mind you. The nature of the game is just rigged for boredom: editors love stats in spite of the fact that normal people's eyes glaze-over when the letters "GDP" appear in print.

This L.A. Times piece by GW Law professor Jonathan Turley, on the other hand, stands out:

In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers.



Such a perfect paradox is no easy task. Most attempts fall apart because of some element of logical consistency. The closest example to Mukasey's Paradox is the Grandfather Paradox: If you go back in time and kill your grandfather before he meets your grandmother, you would not be conceived and therefore you could not go back to kill your grandfather. That one can play real tricks with your head.

...

Now some have pointed to other paradoxes in Mukasey's tenure. There is, for instance, the "paradox" that his confirmation was saved by Democrats -- who thereby allowed the president to avoid a confrontation on torture. There is the "paradox" of Mukasey insisting that courts should not investigate the Justice Department's failure to preserve the CIA torture tapes because the Justice Department should be allowed to investigate its own failure to previously investigate.

Yet these are not real paradoxes -- they're merely political ironies. A paradox is a statement that seems true but yields a contradiction or a dual truth. When reduced to its purest form, Mukasey's Paradox is that government officials cannot violate the law -- but that because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law.

Honestly, the idea of trying to logically breakdown the actions of government is enough to make any sane person's head hurt. To do it so coherently and cleverly most certainly points to many nights staring at C-SPAN with a copious amount of mind-altering substances and a laptop -- and/or a very good working relationship with a grad student in the Philosophy Department.

In all seriousness, 'Mukasey's Paradox' is a troubling but all-too-real tactic to execute the Administration's end-runs around the law. The examples in Turley's article show that justice is being circumvented to protect potentially guilty people. However repugnant to our sensibilities that may be, it is demonstrably worse when it is used to punish potentially innocent people, as in the case with detainees of the "War on Terror."

The Justice Department's arguments in the habeas cases currently before the Supreme Court assert that the detainees, as foreign citizens, do not get Constitutional protection. This is not unusual in American jurisprudence. However, because they are not regular, uniformed combatants -- i.e., prisoners of war -- neither do they get Geneva Convention protection.

Basically, the detainees are foreign -- but not the right kind of foreign as to give them basic human or even procedural legal rights. This loophole essentially makes them non-entities as far as American law is concerned and the government is free to do with them as they please, according to DOJ logic.

Look, the visceral reaction to September 11, 2001 should have long passed. I want to be tough on terrorists too, and if they ever catch Osama bin Laden alive, I don't think too many people would weep if some awful thing happened to him in U.S. custody. That said, we are holding people, specifically in the Boumediene case, that have already been released from foreign prisons for lack of evidence. Ironically, the United States has become a place where other nations -- like the bulwark of freedom known as Bosnia -- send people when their own courts say it is unlawful to detain them. (It is a sad, sad day when Bosnian judges have a better concept of human rights than our Justice Department and Federal judges.)

Hopefully, Justice Anthony Kennedy will side with the liberals in the habeas cases and restore at least some semblance of legal accountability to this Justice Department run amok.