Mukasey Has the Capacity to Be a Great Attorney General, But Not the Time

Benjamin Wittes

Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law. At the committee hearing, he declared the question hypothetical, since the CIA no longer uses the tactic. And he declared as well that all of the tactics the agency does currently use satisfy legal requirements. All of which left Democrats understandably frustrated in their search for answers.

Since the water-boarding debate captured all the headlines about Mukasey’s testimony, you might think the attorney general revealed little about himself. In truth, however, Mukasey’s first oversight hearing brought out a lot about what sort of attorney general he is likely to be. Specifically, the public learned that Mukasey harbors no great ambitions for dramatic policy breakthroughs on the divisive legal questions of our day, apparently preferring to defer these until the next administration. He seems, rather, bent on functioning as a kind of honorable caretaker, a man who can–with quiet, non-adversarial competence–begin repairing the damage wrought by his two predecessors. Mukasey is not going to be an Ed Levi, Gerald Ford’s attorney general, whose brief tenure in the wake of Watergate began the process of rehabilitating American faith in federal law enforcement and intelligence by restraining its excesses. If he’s successful at his more modest task, however, he may enable his successor to be.

Without quite saying as much, Mukasey made clear that he would not be trying anything big in his year in office. In particular, he disclaimed any intent to alter fundamentally the administration’s legal posture in the war on terrorism. Before his nomination to the nation’s top law enforcement job, Mukasey had flirted publicly with the idea that America needed a “national security court” to handle the detention and trial of suspected Al Qaeda operatives. Given his experience as a judge in important terrorism cases–both criminal cases and the military detention of Jose Padilla–some of us had hoped that his appointment as attorney general might lead to a move to regularize in law the longer-term detentions now taking place under the rubric of wartime presidential powers.

But when he was asked about the possibility of closing Guantanamo, Mukasey was hardly dripping with urgency for a new detention regime. He responded that the Supreme Court was considering the scope of habeas corpus rights of the detainees at the naval base, and he mentioned that a lower court was examining the review processes the military uses there. Given that a major legislative package on detention in the second half of an election year will be all but impossible, this translates, essentially, to a punt.

Mukasey is probably correct in thinking that he doesn’t have time for anything big. But considering his talents and sophistication, it’s still disappointing. At a time when Americans are contesting nearly all aspects of the legal war on terror, the attorney general will pass the law to his successor, of whichever party, more or less in the inadequate state in which he received it.

Yet if Mukasey’s testimony broke no new ground substantively, it nonetheless showcased an altogether different kind of attorney general than the Bush administration has generated in the past. Unlike Alberto Gonzales, he did not bob and weave, misspeak, or mislead. He answered some questions, refused to answer others, and he did both in a straightforward fashion. He knew what he was talking about. Even in anger, Democrats treated him with considerable respect. There were no allegations that he was politicizing the Justice Department, because everyone knows he is depoliticizing the Justice Department. He didn’t have to claim to be asleep at the switch to avoid taking responsibility for scandals on his watch, because there are no scandals on his watch. Given that only a few months ago, numerous aspects of the department’s day-to-day work provoked roiling controversy, it’s significant that Senators Ted Kennedy, Charles Schumer, and Russ Feingold, and others all took the time to commend him for important aspects of his performance.

Mukasey also bears no resemblance to John Ashcroft. Ashcroft was, in many respects, a better attorney general than people understood at the time. His public persona, however, was a disaster. This was a man, after all, who accused those concerned about civil liberties with scaring “peace-loving people with phantoms of lost liberty” and suggested that their “tactics only aid terrorists for they erode our unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.” His demonization of opponents and some time demagoguery failed almost completely to create and sustain a broad political coalition for the tough choices the administration made–even when those choices were right.

In stark contrast, Mukasey treated Democratic policy disagreement with the respect it deserves. While he pushed Democrats to give the administration its way on warrantless surveillance, he never suggested that those who vote otherwise are aiding the terrorists. He may not prove to be a uniter, but he’s no divider either.

Mukasey has the capacity to be a great attorney general. He does not, unfortunately, have the opportunity. Time is too short, passions too high, the president too foolish, Congress too angry. He came a year too late to be the Justice Department’s Robert Gates, a man who steps in to rescue a badly degrading situation and changes the landscape by succeeding.

If Mukasey succeeds, he will be gone next year and forgotten shortly thereafter. He will achieve no greatness himself, but he might set the table for it in the next attorney general, who will have a momentous opportunity to institutionalize and shape the war on terrorism in law for the long term. Mukasey can do this by making sure that America spends the next year debating counterterrorism policy, rather than the dismissal of Justice Department personnel, improper Justice contacts with the White House, or political interference in investigations. He can do it by playing straight with political opponents. And he can do it by making sure that even as people attack his comments about water-boarding, they pause to praise his stewardship of his office.

There’s a big difference between an attorney general the country can admire and one who invites its contempt or hatred–even when they say more or less the same thing.