The Ricochet Podcast - CPAC #2: Attorney General Michael Mukasey

Episode Date: February 26, 2015

Here’s our second conversation from CPAC: Jay Nordlinger talks with former United States Attorney General Michael Mukasey. Source

Well, I'm Jay Nordlinger with National Review here at CPAC, and I have with me a distinguished American, Judge Michael Mukasey, former Attorney General of the United States under George W. Bush. Welcome and thanks for being with us. Thanks for having me. It's good to be here. Ted Cruz said today that Barack Obama is a lawless president. That's really quite a heavy charge, lawless.

Is that justified? Lawless in the sense that he recognizes no legal authority that restrains him? I don't think it's, I think it's entirely justified. He appeals to law. He invokes law. He's lawyered up, down, and sideways. But the whole point for him is to achieve a particular result. And I don't think it's at all a stretch to say that he's loyalist. Is our system of checks and balances working? It's supposed to, of course. He's got to be checked. Can he be checked on this amnesty business, or is he home free, so to speak?

I think he's in the process. He may be in the process of being checked on the amnesty business. Look, the fact is that, as he himself has pointed out, elections have consequences. And, you know, one of the consequences is that all the executive power is reposed in his hands. And then the question becomes, how shameless is he about using it in ways that are not authorized and ways that in another setting could justify removal from office? Certainly, there is an argument that wholesale refusal to apply the law, which is what the amnesty program is about. Yes, there's discretion

in this case or that case to withhold the application of the law, but if you're talking about just a wholesale refusal to enforce the law, there's an argument that that is the kind of grave misuse of power that would justify removal from office. On the other hand, the country's not in any mood for that. And what do we get in the bargain? Joe Biden? Yeah. Well, speaking of Democrats, we have an attorney general nominee, Loretta Lynch, who would replace Eric Holder. From our point of view, would she be an improvement or about the same or worse? Or is that impossible to say now? It's hard to tell now.

I think that... I know Loretta Lynch, sort of. I don't know her well. I've been on a couple of panels with her. I've spoken to her a number of times. She's like a perfectly nice person. But she had two responses to the questioning on her hearing that I thought were just stunning. And not in a good way. And not in a good way. And not in a good way. It made it impossible for me to say, yeah, I support her.

One had to do with simply whether an American could be treated as, whether a U.S. citizen could be treated as an unlawful enemy combatant. And she said, no, that an American citizen has rights under the Constitution and those can't be infringed on regardless. Well, as a matter of fact, there's Supreme Court authority, both going back to World War II and current, saying precisely the opposite. Now, I don't expect any nominee necessarily to be aware of every Supreme Court case, but you'd think that she would have anticipated being questioned about that. I don't know whether she's dialed back that answer or not. There was another question

asking her whether she thought that waterboarding was unlawful. And she said, yes, it's unlawful because it's torture. I don't know what she knows about the technique that was used by the CIA, whether she's read the OLC memos on the subject or not. But to say something like that then suggests that she would prosecute people who waterboarded people. Yes. And that's... If you were a member of the U.S. Senate, I think you'd have a hard time voting for her confirmation based on that.

Based on that, I would have a hard time, because understand that those cases were reviewed not once, but at least twice. First, by the Eastern District of Virginia, which declined to prosecute anybody. In fact, there were memos, prosecuted memos in the file closing those cases. When the current officeholder, no pun intended, took office, he immediately reopened those cases without reading those memos. Had them reinvestigated by somebody who I had appointed actually to look at the destruction of the CIA tapes. He spent a couple of years doing that. And on a Friday afternoon,

they issued an opinion saying that there was, again, nothing to prosecute. So for her to say that it was torture suggests that we're in for, unless she's going to be completely unprincipled, they're not doing anything about it. It's defamatory, too, I think. Of course it's defamatory. Well, the president, I remember casually, I forget what the setting was, I'm sure you'd remember, said, well, after 9-11, we departed from our standards and we, quote, we tortured some folks. Yeah, yeah. Speak for yourself, Mr. President. Yeah, speak for yourself. And I don't regard the three people who were waterboarded, if that's what he's talking about.

I don't regard Khalid Sheikh Mohammed, Abdul Rahim al-Mashiri, and Abu Zubaydah as folks. You're not losing any sleep over their waterboarding? No. Me neither. I didn't lose any sleep at the time that I first read about it, and I haven't lost any since. Are you surprised that our prison at Guantanamo Bay remains open? He did pledge to close it. It was this great stain on us and it was an embarrassment to us. Yeah, he did. The trouble is that it's been made impossible or enormously difficult for him to

close it because Congress has put in place legislation that bars bringing anybody from Guantanamo to stateside to be confined here. Is that law a good idea? Yeah, it's a good idea because Guantanamo, look, Guantanamo has three advantages over any prison in the United States. It's remote, secure, and humane.

There's a fourth advantage, actually, which is that the people confined there, although they have a right to habeas corpus or the equivalent, don't have easy access to a federal court within their jurisdiction. If they come here, they will have easy access. And you will then see not one, not ten, but hundreds if not thousands of cases filed by lawyers

who are prepared to essentially bring everything to a halt in order to overload the system in their behalf. Speaking of the federal courts, if I remember correctly, you were a colleague of Sonia Sotomayor. How do you think she's doing on the high court? She seems to be doing okay. As expected. I have to tell you, I have not followed her career closely on the high court. I'm sure that's... Would someone on the left, would a Kagan or a Sotomayor, would ever give us a surprise vote?

You know how the conservatives always give you a surprise vote, and they vote with a liberal majority, let's say. It seems like we don't really have surprises out of the left side of the bench. Of that sort? That's true. We don't. I'm trying to think of whether there's been one. Let's go abroad, and we have just a couple more minutes. I don't want you to be late for your next appointment. It's 2.52. This is a very unfair question. It's a big and apocalyptic question, but I often ask it to people with interesting

answers. Do you believe that Israel will survive, or do you think the forces arrayed against it are too great? Who knows, right? I told you it's an unfair question. It is an unfair question. It's not an unfair question. It's difficult to answer. I think that because I'm an optimist, I try to be an optimist, and because I'm a Jew, I have to believe that it will survive. I think that the forces arrayed against it, although substantial, are not at this point enough to overwhelm it. I take it my guess is you're not surprised by the re-emergence of anti-Semitism in Europe?

That's right, I'm not. Because it... What can people do besides move? Well, they can do that. I think that trying to be more inconspicuous than they've been up until now is not the answer. No. I mean, Europe is going to pot in a whole lot of ways, of which anti-Semitism is one, but certainly isn't the only one.

The Europeans apparently lack the stuff to keep their culture alive. The churches are empty except for tourists. Yes. So, you know, why should the Jews stick around to be the canary in the coal mine or to hold up what remains of the civilizations of the countries in which they live unwelcome lives? Let's end on some grubby politics,

or maybe some non-grubby politics, presidential politics. Do you have a horse, a favorite for 2016? I do. Tell us. Jeb Bush. I think he is, both by temperament and by intelligence and by experience, the best suited among the candidates that I've seen. Do you think he'll be a good commander-in-chief?

I think he will be. I think he would be. Yes, I do. John, it's a very... He's very sober, substantial. It's a very trite thing to say, but it's sincere. Thank you for your service. I look forward to seeing more of it, in whatever way. Whatever I can do, I'm going to do.

Judge Michael Ucasey, kid from the Bronx. I always say about the judge, he's probably sick of my saying this, but when I first met him, interviewed him, I said, he has a rather unusual name, Ukezi. I said, did people ever mistake it for Irish? He said, yes, especially the mothers of the Jewish girls I was dating. Thank you very much. Ricochet. Join the conversation