The debate about how much power the president should have to fight terrorism is often framed as a conflict between left and right. Yet it was Supreme Court Justice Antonin Scalia, the very model of a conservative jurist, who took the most uncompromising position regarding the president’s authority to detain without charge citizens he thinks are connected to terrorism: Unless Congress suspends the writ of habeas corpus in response to "rebellion or invasion," Scalia said in a 2004 dissent, the president has no such authority.
Michael Mukasey, the former federal judge President Bush has nominated to succeed Alberto Gonzales as attorney general, took a different view. But Mukasey’s record, like Scalia’s, shows that respect for the law sometimes can reconcile the authoritarian and libertarian impulses of modern American conservatism.
Mukasey clearly leans in the authoritarian direction. Consider his take on the Bill of Rights.
According to Federalists such as Alexander Hamilton, the Bill of Rights was both unnecessary and dangerous because the new national government had only those powers enumerated in the Constitution. A list of specific rights, Hamilton wrote, "would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted."
Mukasey sees a different problem with the Bill of Rights. In a 2004 speech, he suggested that "those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government — God-given rights, no less, according to the Declaration of Independence — then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them."
No free man should feel inclined to sacrifice in behalf of his government. As the Declaration of Independence (that airy-fairy document mentioned by Mukasey) puts it, "Governments are instituted among men to secure these [God-given, unalienable] rights." The government serves the people, not the other way around.
When it comes to terrorism, the question is not how we can best serve our government but how our government can best serve us — in particular, the extent to which security against violations of our rights by the state should be traded for security against violations of our rights by terrorists.
From the dismissive way he treats critics of anti-terrorist measures such as the Patriot Act, it’s clear Mukasey worries more about the latter.
Mukasey’s saving grace is that he sees the law as something more than an inconvenient obstacle to evade. He upheld President Bush’s detention of Jose Padilla, an American citizen arrested on U.S. soil who was held in military custody without charge for three and a half years, because he concluded that Congress had approved such treatment of suspected terrorists when it authorized a military response to the Sept, 11 attacks. Without such authorization, he noted, Padilla’s detention would have been prohibited by a federal law that says that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
Based on other statutes, Mukasey ruled that Padilla had a right to contest his classification as an enemy combatant (albeit under a standard very generous to the government). He rejected the administration’s argument that Padilla should be prevented from consulting an attorney, saying it relied on "gossamer speculation" about potential threats to national security.
Mukasey’s policy recommendations likewise stop short of the unilateralism that has characterized the Bush administration’s approach to terrorism. He suggests "a new adjudicatory framework" may be needed to handle terrorism cases, for instance, but does not pretend the president can create one on his own.
Mukasey does not seem to believe the president may do whatever he considers necessary to fight terrorism, regardless of the constraints imposed by Congress. Sad to say, that fact alone makes him an improvement over Gonzales.