The choice in office decoration can say a lot about a man. In the chambers of former chief judge Michael Mukasey of the District Court in New York, two portraits hung on the wall. One was of former U.S. attorney general and U.S. Supreme Court justice Robert Jackson, and the other was of Eric Blair, better known to posterity as George Orwell. Why would a Reagan Republican, known for his close ties to presidential hopeful Rudy Giuliani, have a picture of an iconic New Deal Democrat on his wall?
Mukasey gave a hint during his opening remarks at his Senate confirmation hearings for the position of U.S. attorney general. As that statement unfolded, it became clear that Mukasey did not value Jackson for his liberal political views, but rather for his vision of justice, which was blind to the natural pressures of partisan politics; Jackson was a man who insisted on rigorous independence and impartiality.
And what of George Orwell, the man now routinely cited by civil libertarians distressed by growing powers of a state curiously addicted to secrecy? Whatever Mukasey may think of the author of 1984, it’s clear that the man Mukasey most values is the author of “Politics and the English Language,” Orwell’s classic reminder that language matters, that it can shape the culture we live in, and that we must choose our words with care and precision.
Mukasey’s words at his confirmation hearing reflected that concern: They were calm and careful, but at times also inspirational. Though, especially in the discussion of torture that erupted on the second day of the hearings, the Orwell of 1984 was also in the background.
Mukasey is about to face the most difficult challenge of his professional career. He assumes the helm at the U.S. Department of Justice at a time when morale has reached a post-Watergate low. The institution is so filled with high-level vacancies that it seems almost decapitated. Few of the most desirable potential candidates seem willing to accept appointments.
The Justice Department is also under scrutiny from many sides. The House Judiciary Committee is studying mounting allegations that Justice brought politically motivated prosecutions, timed to influence elections, against prominent Democrats in Alabama, Georgia, Mississippi, Pennsylvania, and Wisconsin. The Senate Judiciary Committee is focused on allegations that U.S. attorneys were removed and appointed to support a program of political control over the criminal justice system. Both houses are looking at the conduct of the Justice Department’s civil rights division, especially in voting rights cases.
At the same time, the Bush administration has an affirmative agenda, including pushing through the nominations of federal judges, securing changes to the Foreign Intelligence Surveillance Act (FISA), and, in particular, winning immunity for the telecommunications companies that cooperated with a controversial warrantless National Security Agency program. In the war on terror there is also a growing sense among prosecutors that new counterterrorism legislation is needed to address domestic terrorism-potentially including a National Security Court.
I have tremendous regard for Mukasey, who is a friend and was my partner at Patterson Belknap Webb & Tyler. He may be the one man Bush considered for the job who actually stands some chance of righting the ship at Justice. But he will sail between treacherous rocks. On one side is a Democratic majority in Congress anxious to see change in administration policy on FISA, torture, military commissions, habeas corpus, extraordinary rendition, voting rights, and a host of other issues. On the other side are the movement conservatives who sit at the heart of the administration, and who will view any shift by Mukasey on these issues as an act of betrayal. There is no way that Mukasey can make both sides happy.
These policy debates will consume much of Washington, D.C., for many months to come, but Mukasey’s mission must be to restore to the Department of Justice the values for which it was once famous: independence, integrity, and avoidance of partisan entanglements. The department’s current troubles can be traced back to its use by the Bush administration as the tip of an ideological spear, a spear that was used to dramatically expand presidential powers and to pursue a partisan political agenda. Mukasey must keep his focus on institutional repair. He must take care not to be consumed by the many policy debates raging within the Justice Department. They include:
� U.S. Attorneys and Political Prosecutions. The U.S. attorneys scandal has been on the front burner since the beginning of the year, but inquiries into it are now stalled as a result of Justice Department and White House refusals to comply with requests for documents. The Bush administration’s posture looks like a cover-up. There are also roughly a dozen cases in which reasonably persuasive evidence supports claims that prosecutors were motivated by political considerations in bringing charges against Democratic officials close to election time. In some of these cases, most dramatically the case of former Alabama governor Donald Siegelman, evidence has now been adduced linking the prosecution to directions that came from former political strategist Karl Rove or other sources in the White House.
Mukasey’s principal objective has to be to restore morale in his department. He can’t do that while conducting an internal investigation of the breadth that these allegations demand. The best solution for him would be to appoint an independent examiner, probably best a retired judge or prosecutor with impeccable credentials, to look into these cases, make recommendations as to whether the dismissals of Justice personnel are warranted, and also to see whether concerns of prosecutorial misconduct or manipulation are sufficient to justify the appointment of a special prosecutor. The examiner should be in a position to compel testimony from Justice employees and to examine records. He or she will not have subpoena power, but if the investigation is obstructed, that should be sufficient justification to bring a special prosecutor on board.
� Office of Professional Responsibility/Inspector General. Several cases I have studied, including some caught up in the U.S. attorneys and political prosecutions controversies, reflect conflict between Justice’s Office of the Inspector General and its Office of Professional Responsibility (OPR). It’s hard to fault the work of the inspector general. However, the OPR often seems to struggle to assert its jurisdiction over cases and then to sit on them. Example: the OPR muscled aside the inspector general in an inquiry as to whether a major case in Virginia involving General Re Corporation had been killed for political reasons. Once the OPR got jurisdiction, it sat on the investigation. After a while, this pattern begins to look like a cover-up. Given the current difficulties at Justice, the key to avoiding independent prosecutors is having credible, serious internal investigations, and many Democrats on the Judiciary Committee question whether the Inspector General is up to the job. The inspector general has acted professionally, but the OPR may need a serious shake-up.
� Office of Legal Counsel. In the Judiciary Act of 1789, Congress gave the U.S. attorney general the power to issue legal opinions binding on all other agencies of the government. This power now rests in the Office of Legal Counsel (OLC). After the torture memos started to surface, the OLC got a great deal of unwelcome public attention. Once a bastion of professionalism and polished legal reasoning, more recently it has become a major source of embarrassment to the Justice Department. Mukasey needs to assume responsibility for what comes out of the OLC. He should make the OLC operations as transparent as possible, and make sure that the office draws on legal expertise at other agencies. For questions concerning interrogation policy, for instance, there is no excuse for the OLC’s continuous failure to consult the lawyers at the U.S. Departments of State and Defense who are the real experts on this subject. The current head of the OLC, Steven Bradbury, is an interim appointee who has overstayed his term. Mukasey needs to find someone for the job who commands broad respect in the legal community and who is above the partisan fray.
� Military Commissions/Guant�namo Bay. Military lawyers involved in the Guant�namo process consistently point to behind-the-scenes manipulations by the Justice Department when they highlight what has gone wrong with the military commissions, who are planning war crimes trials of Guant�namo detainees. Much of what has transpired reflects a lack of confidence in the military court-martial system, and a refusal to give deference to the military officers who crafted and run that system. Secretary of Defense Robert Gates recently complained that his initiative to close Guant�namo had been “blocked” by “lawyers in the administration,” a statement widely interpreted as a reference to the Alberto Gonzales Justice Department and David Addington, Vice President Cheney’s chief of staff. The easiest route for Justice to pursue with respect to the military commissions is to recognize and defer to the greater expertise of military lawyers to administer a military court system. Justice’s role should be minimal. Indeed, the smaller that role is, the more likely the military commissions system will be successful.
Mukasey’s nomination has only one recent historical parallel: Gerald Ford’s nomination of Edward Levi as U.S. attorney general in 1975. After the damage wrought by Watergate, Levi and his deputy, Harold Tyler, Jr., (another former partner of mine), focused on restoring the reputation and morale of the Justice Department. They did what they could to avoid crippling policy debates and focused on building a department that was distinctly above the political fray. That approach would serve Mukasey well for the next 14 months. Levi and Tyler also worked to recruit top talent to the Department of Justice. Among their hires: a young prosecutor in New York named Michael Mukasey.
Scott Horton lectures at Columbia Law School, works on military contractor issues for Human Rights First, and is a member of the board of the National Institute of Military Justice.