Mukasey Defends Yoo at BC Law Commencement
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Mukasey's defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.
Today, many of the senior government lawyers who provided legal advice supporting the nationâ€™s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestionsâ€”suggestions that are made in a manner that is almost breathtakingly casualâ€”that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.
But few people have examined Mukasey's rationale for defending Yoo.
Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and--I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.
To make this argument, Mukasey relies on Jack Goldsmith's discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one--FISA--was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress ... crafting many of the laws that so infuriatingly tied the President's hands in the post-9/11 world").
That's important because, rather than attributing this legal timidity to Goldsmith's more general trend of human rights over the last 60 years, Mukasey picks a few historical events as the source of risk aversion.