Michael Mukasey's bait-and-switch: 'al Qaeda 7' for Yoo and Bybee

Turning to the op-ed page of the WSJ on Wednesday -- always a dangerous enterprise if you support the rule of law  -- I noted with satisfaction an op-ed by former attorney general Michael Mukasey titled, "Why You Shouldn't Judge a Lawyer by His Clients." It appeared that Mukasey was joining other Bush Administration attorneys and principled conservatives in denouncing the vicious smears of Liz Cheney against Justice Department lawyers and other attorneys who have defended Guantanamo detainees or otherwise worked to uphold the rule of law in the treatment of detainees.

While Mukasey's piece does defend those who defend "clients that were or became unpopular," the piece is a bait-and-switch, built on a false and dangerous equivalence that is sure to become a Republican talking point.  After noting perfunctorily that Bernie Madoff's lawyer was reviled, Mukasey turns to his true passion:

More recently, we've witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.

After then noting the denunciation of Justice Department attorneys who in private practice represented terrorist suspects or upheld their rights, Mukasey makes his move:

Addington's legacy: we're "one bomb away"

By now, much of the astounding information unearthed by Jane Mayer in The Dark Side has been replayed in media accounts and augmented by the release of documents including the torture memos and the ICRC's report on U.S. treatment of prisoners held in the "black sites."

The book remains indispensable, however, in documenting the extent and means by which David Addington and John Yoo hijacked the Justice Department and for at least two years cowed, silenced or marginalized their colleagues and superiors to ram through binding opinions that authorized the executive branch to abrogate the Geneva Conventions, the Convention Against Torture, the Bill of Rights and the separation of powers stipulated in the Constitution.

To my mind, the most telling passage in the book comes in the account of how Addington and Yoo green-lighted the NSA's violation of the Foreign Service Intelligence Act (FISA) through domestic spying in the Terrorist Surveillance Program. According to Mayer, with reference to the FISA Court:

Addington had been heard to mutter, "We're one bomb away from getting rid of that obnoxious court."

We were one bomb away, and ultimately perhaps remain one bomb away, from getting rid of not only FISA, but perhaps all the civil liberties and Constitutional protections that Americans have enjoyed for 200+ years. This was my constant thought in early 2008 as I listened to the thug's gallery of candidates for the Republican presidential nomination strive to outbid each other in promises to continue torturing those held in US custody and otherwise reaffirm the Bush Administration's twisted concept of the "unitary executive."

It's true that antibodies in the US political system did kick in to a degree -- in the person of Justice Department and Pentagon attorneys including Goldsmith, Comey, and Mora; in multiple reports by the military and later by the Senate detailing the extent of abuse; in Supreme Court decisions; and ultimately at the ballot box.

But taboos and norms, once violated, will be violated again under stress if the violations are not unequivocally repudiated. Which they haven't been.