It is hard to believe that a distinguished jurist, and a man who for a time was the nation's principal law enforcement official, actually believes some of the writings attributed to him in the op-ed, such as:
"...there is every reason to believe that the places of both trial and confinement for such [terrorism] 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." (Emphasis added.)Hmmm, so lawyers are the problem?
Hmmm, without the lawyers, perhaps certain government abuses, outright mistakes or incompetence would never be exposed? After all, the innocent and wrongfully-accused are just acceptable collateral damage...after all, they're not dead...thanks to the post 9/11 Justice Department / Homeland Security regime. Or perhaps Mukasey's real concern is to chill the activities of the troublesome lawyers, the better to keep certain things secret.
Mukasey further advocates for a "touchstone for admissibility of evidence" as "relevance and apparent reliability." He fails to address how this standard would not imperil the rights, freedom and liberty of every American if applied in any other court.
Finally, Mukasey all but states in his last two paragraphs that those of us who assert the primacy of our Constitution will have blood on our hands should there be another attack. However, many of us cannot reconcile our Constitutional protections with such practices as indefinite detentions without trial, wiretaps without warrants, sneak-and-peak searches, and torture. We have been -- and remain -- concerned that such practices, once tolerated against the most horrible of the horrible, can easily threaten and be imposed upon the rest of us on a creeping, slippery slope with ever-changing definitions of what is "wrong" or "undesirable."
Such concerns become of greater importance with the revelation this past summer that our domestic law enforcement agencies have admitted to infiltrating domestic political organizations to identify possible law-breakers. (That will be grist for a future post; stay tuned.)