Mukasey Compares “al Qaeda 7″ Smear Ad to Campaign Against Torture Lawyers Yoo & Bybee

Add Michael Mukasey to the list of Republican officials who have come out against Liz Cheney’s ugly ad smearing Obama’s Department of Justice lawyers as terrorist sympathizers — but don’t get too excited. The former Bush Attorney General has an op-ed in today’s Wall Street Journal in which he defends attorneys’ professional mandate to represent even the most despicable clients (Bernie Maddoff comes up in the second sentence). But a few paragraphs in, it becomes clear that the essay is more of a defense of the Bush administration’s unconstitutional terror policies than a defense of the rule of law.

“More recently,” Mukasey writes, “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.”

He goes on:

Most recently, lawyers now employed at the Justice Department who, while in private practice, volunteered to represent suspected terrorist detainees, or argued legal positions supporting various rights of such detainees, have been portrayed as in-house counsel to al Qaeda.

It’s a bogus comparison — anyone who has read the torture memos knows that Yoo and Bybee were hardly just “taking legal positions” — and a telling juxtaposition. Mukasey is trying to draw an equivalence between an attack ad on government lawyers that perverts American democracy and the rule of law with attempts to hold accountable government lawyers who themselves perverted American democracy and the rule of law.

It’s a smart move, of course, and one Yoo himself makes in a quote published today in the New York Times.

On the issue of Obama’s DOJ lawyers defending prisoners of the so-called “war on terror,” Yoo said: “What’s the big whoop?”

“The Constitution makes the president the chief law enforcement officer,” he said. “We had an election. President Obama has softer policies on terror than his predecessor … He can and should put people into office who share his views.”

Putting aside the absurd claim that “Obama has softer policies on terror” than Bush, it’s pretty clear what Yoo is trying to do (with a bit of a wink and a nod). He is not really defending Obama or his DOJ lawyers. He is defending himself, by casting the torture lawyers as dedicated public servants unfairly maligned for doing their jobs.

Like Yoo before him, Mukasey uses the column space provided to him in the Wall Street Journal to criticize attacks on Bush detention policies (while appearing to make a principled defense of the rule of law):

I think the Supreme Court decided wrongly in several key cases regarding the war on terror and our national security. They include Boumediene v. Bush (2008), in which the Court found insufficient protection for Guantanamo detainees that had not yet been put to the test, and Hamdan v. Rumsfeld (2006), in which the Court applied to detainees a provision of the Geneva Conventions that was intended to apply only in civil wars on the territory of a signatory to those Conventions. While I disagree with the Court’s decision in these cases, I stop well short of blaming the outcome on lawyers who argued successfully.

The Boumediene and Hamdan decision, of course, were two of the Bush-era’s most important instances of judicial oversight on a runaway administration. Mukasey’s defense of the lawyers involved is fine and good, but on issues of judicial legitimacy, he, like Yoo, shed his credibility a long time ago.