Musharraf, Mukasey and Checks and Balances

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Musharraf, Mukasey, and Checks and Balances

Published in the Maryland Daily Record November 26, 2007

This month, the lawyers of Pakistan have been in the streets, and closer to home the Senate has agonized over the Michael Mukasey nomination for Attorney General. The protests of the Pakistani lawyers and the misgivings of the U.S. Senate, it is apparent, address similar problems.

The laws of Pakistan ordain a separation of powers and presidential term limits. They do not permit Pervez Musharraf, the Pakistani president, continued control both of the armed forces and of the presidency. Perhaps, had constitutional processes continued without interruption, he might have remained in command of neither. And the courts, claiming their own measure of sovereignty under a system of checks and balances, had served notice on him that they intended to enforce those processes. So he had closed down the courts, dissolved the legislature, and interfered with the electoral machinery.

Pakistan’s lawyers had gone into the street to protest, with waves of demonstrations that seemingly cooled only when he had beaten and arrested thousands of them, lodging patently phony charges, the most outrageous arising under the anti-terrorism laws, which (shades of Guantanamo) deny them access to the courts to clear their names.

Pakistan faces multiple forms of distress, but the heart of its angst is doubtless caused by the fork in the legal road at which it stands. Either it will be a nation of laws, where the courts can serve as a check on the executive, or it will not. Musharraf’s test of wills with the fledgling legal establishment in his country will probably decide this question for a generation. If he wins, the constitutional machinery of Pakistan won’t be worth much.

He probably knows this, but probably believes that in the welter of threats and difficulties Pakistan faces, the continuation of his presidency is of greater importance than the continuation of the rule of law. He is almost certainly wrong. A willingness to submit to the checks and balances of divided government and to permit succession in keeping with constitutional mechanisms, especially those mechanisms which place real limits on the powers of the head of state and/or require him to yield place to a successor, gives every side a reason not to resort to arms and insurrection. A successful resistance by Musharraf to such laws will confirm to the regime’s various opponents the futility of awaiting their legitimate turn. No wonder the lawyers are taking a stand.

Closer to home, the Mukasey nomination came close to foundering on the question of waterboarding. Ostensibly a narrow issue (unofficial sources reportedly say it has been used only three times in the “war on terror,”) it is a stand-in for a creeping constitutional crisis in our land, also centered around checks and balances. The constitution, laws, and treaties of the land clearly outlaw waterboarding. Mukasey’s unwillingness to acknowledge this for the record was transparently motivated by an awareness that if he did so, he might very well provide an opening for the U.S. judiciary and Congress to take actual corrective action. And though Mukasey stated he found the practice repugnant, he would not allow his answers to become a starting point for accountability for the administration that had appointed him. Mukasey likewise refused to say that all warrantless wiretapping was unconstitutional.

Mukasey secured his confirmation by issuing a pledge to Senators Schumer and Feinstein that if Congress passed a law specifically outlawing waterboarding, he would see that the administration enforced it. He also made a number of remarks that signaled that as a former assistant U.S. attorney and federal judge he understood the importance of institutional independence for the Department of Justice – an independence the Senate knows DOJ needs to restore.

As Senator Schumer summarized in the New York Times: “The department has been devastated under the Bush administration. Outstanding United States attorneys have been dismissed without cause; career civil-rights lawyers have been driven out in droves; people appear to have been prosecuted for political reasons; young lawyers have been rejected because they were not conservative ideologues; and politics has been allowed to infect decision-making.” To address such concerns, Mukasey assured the Senate that partisan politics would not be allowed to influence the bringing or timing of charges, that he viewed protecting civil liberties as vital to national security, and that in his understanding, the President does not stand above the law.

In other words, Mukasey claimed he had imbibed the traditional institutional values of the Justice Department, as his predecessors Alberto Gonzales and John Ashcroft had so conspicuously and appallingly not done.

Traditionally, Justice exhibits a strong culture of competence, ethics, insulation from partisan politics, and adherence to the rule of law – all things which have at times required the Department to act at odds with a White House to which it nominally reports, but which at times (for the last seven years for instance) has exhibited none of these things. That culture has had its downside; its members and even its alumni often teem with a sense of self-righteousness and an arrogance that can make them inflexible and personally insufferable. But it is a culture vitally worth preserving nonetheless – a sort of internal executive check and balance of its own.

In Bush, though, DOJ has encountered a president with an MBA rather than a law degree, and innocent of any legal acculturation whatsoever. To him, those institutional values and the independence they fostered were just a business obstacle to overcome.

In the end the Senators’ desire to see DOJ independence and professionalism restored trumped their desire to challenge other forms of Bush resistance to the constitutional order.

We can expect Mukasey to improve the battered morale of his agency. But will Mukasey live up to his Congressional puffery and stare down his boss? Well, after less than a week in office, he had already urged the president to veto a bill that would endow the FISA court with the exclusive power to authorize intelligence wiretaps. When a former federal judge resists a judicial check on executive powers, it is a very bad sign.

Mukasey’s resistance to checks and balances is the same as Musharraf’s. Musharraf has repeatedly justified his “state of emergency” as necessary to the security of his state, just as Bush has justified warrantless wiretaps, torture, Guantanamo, etc., etc. as necessary to resist Islamic terrorism. The unifying thrust of all the secret legal memos the administration’s lawyers have generated over the last few years in defense of its gallery of horrors has been a reliance on presidential powers to defend the country.

Mukasey’s November 14 letter about the FISA bill is of a piece with the worst of the Gonzales sophistry. The prerogatives of the courts and the Congress have been continually treated as if Article II of the Constitution, setting forth inter alia the President’s powers to defend the nation, were an amendment that superseded Articles I and III establishing Congressional and judicial powers, including checks and balances. But Articles I-VII were all passed at once; reading Article II as if it were an amendment to the rest is bad textualism and worse government.

Our ancient and strong system of checks and balances will probably survive Bush and Mukasey; Musharraf has assured that Pakistan’s new and weak system of checks and balances will most likely fail.

Copyright (c) Jack L. B. Gohn

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