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Executive Power in Wartime, 3/3

December 19th, 2011 by admin

            Michael Mukasey served as Attorney general of the United States from 2007-2009, the last two years of the George W. Bush Presidency. The following is adapted from a speech delivered in Washington D.C. on September 2011, at the Second Annual Constitution Day Celebration sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship. Due to its length, we will reprint this speech in three parts with the following proviso: “This reprint is with the permission from Imprimis, the national speech digest of Hillsdale College, www.hillsdale.edu.”

The following is the third part of Michael Mukasey’s speech:

People who wish to quibble about what it is we are at war with take the discussion off into absurdity. One such person is the President’s Assistant for National Security, John Brennan, who, before an audience at the Center for Strategic Studies, ridiculed the idea of a war on terrorism or on terror, saying it is impossible to have a war on a means or a state of mind.

This lack of clarity also distorts the view of policy makers about what is happening in the Middle East, and so they daydream about democratic movements when the reality on the ground is more populist than democratic. The principal beneficiary of populism is more likely to be the Muslim Brotherhood than the local spokesman for Facebook. The credo of the Muslim Brotherhood is succinct and chilling: Allah is our goal, the Prophet Muhammad is our leader, the Qu’ran is our constitution, jihad is our way, and death in the way of Allah is our promised end.

If the death of Osama bin Laden is more than simply a spasm, or an opportunity to engage in self-congratulation—if it helps provide some insight into the nature of what it is we are fighting—then it will have been significant indeed. If not, its significance will be substantially diminished.

The signs do not seem promising. Even on September 11 itself, as was pointed out by Fouad Ajami, there was no discussion whatever of the 19 people who perpetrated the atrocity. Ajami pointed in particular to Ziad Jarrah, the most Westernized of the hijackers. Raised in Beirut, Lebanon, to be cosmopolitan in the spirit of that city, he then went to Hamburg, Germany, where he was radicalized, and he then wound up at the controls of Flight 93, the flight that was supposed to hit the U.S. Capitol. It didn’t because the passengers learned what had already happened at the World Trade Center and the Pentagon, figured out what was in store for them and their country, and chose to act.

There is much to be learned from those facts. Start with the last. We learn the importance of intelligence. The passengers on Flight 93 were able to act because of what they had learned about what was going on elsewhere. Intelligence gathering must be our number one priority. The people waging war on us are part of a movement that does not occupy any particular place or country that we can demolish and then pronounce ourselves the winners. They live in some cases among us, and the only way of opposing them successfully is to find out in advance what they intend to do and to thwart it.

Second, note that Jarrah was radicalized not in the Middle East, but in the West. We must be aware of those in our society who wish to create closed ethnic zones, where Muslims essentially run their own affairs and outsiders enter only at their peril. This has already happened in the suburbs of French cities, in parts of England, and in other places you would not expect it such as Malmo, Sweden, and it allows radicalization to go on undetected. Guidelines have been put in place to allow the FBI to function for the first time in its history as an intelligence gathering organization and not simply as a law enforcement agency. If the Bureau partners with state and local law enforcement, then the kind of insular activity that allowed Jarrah to be radicalized can be broken up. Those guidelines must remain in place, and must be defended.

Doing that will require an intelligent understanding of the part of the Constitution I didn’t discuss at the outset, the part that animated so much criticism of the Bush administration by those now in charge—the Bill of Rights. This part of the Constitution provides robust protection to both public and private activity that we value, which is essential for the continuation of our civic life. But it does not require that we close our eyes when there are people plainly setting the stage for activity that is in no way protected.

The First Amendment protects free speech and freedom of worship. It permits preaching even violence in the name of religion. But it does not guarantee that such speech will go undetected. Nor does it guarantee that evidence of it cannot be presented in a court when and if it is appropriate to charge that the speaker and those to whom he spoke understood this protected speech and took it as a call to unprotected action. This includes action that itself consists only of speech—such as an agreement to commit a crime, which is itself the crime of conspiracy.

The Fourth Amendment protects against unreasonable searches and seizures, and contains a separate warrant clause providing that warrants may issue only on a finding of probable cause. That does not mean that a search conducted for intelligence purposes requires a warrant, only that it be reasonable.

The Fifth and Sixth Amendments guarantee due process, counsel to those accused of crimes, and the right to confront witnesses, but their application is limited to trials occurring in Article III courts. How much process is due and what kind of evidence may be received and under what circumstances in other tribunals, such as military commissions, is an entirely different story.

The message lurking in the structure of the Constitution is that those acting lawfully under it deserve at least the benefit of the doubt when they act to protect the common good. That is not meant to be a statement or a suggestion of a jurisprudential standard, a standard of law; but it is meant as a prudential standard, a standard of civics and public discourse. This standard will help keep intact the system that we depend on to preserve the nation that Abraham Lincoln called the last, best hope of earth—words that are truer today than they were when he spoke them during another time of trouble.

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