Words I Hope Are Heartfelt

With the official announcement that the President has nominated Michael Mukasey to be the next Attorney General, a number of bloggers and commentators have begun to scrutinize his writings. In particular, this 2004 Wall Street op-ed defending the Patriot Act has received quite a bit of attention.

Mukasey argues in the op-ed that the Patriot Act isn't nearly as sinister or draconian as many of its critics would have you believe. Though there are some provisions of the act (particularly those governing the use of National Security Letters) that could stand to be improved, I think Mukasey is generally right. Most provisions in the Patriot Act are perfectly reasonable (and in some cases long overdue), and much of the hysteria over that statute is misplaced, at least in my opinion.

But it's another part of the op-ed I want to focus on. Toward the end of the piece, Mukasey writes:

As we participate in this debate on what is the right course to pursue, I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution--principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.

What I take Mukasey to mean here is that our bill of rights is essentially meaningless without a robust system of checks and balances. To take an obvious example, the right not to be subjected to unreasonable searches and seizures under the Fourth Amendment means very little if there is no statutory scheme in place to enforce it and the judiciary is not allowed to oversee executive conduct or provide redress to those whose rights are violated. Statutes like Title III and FISA were enacted in order to prevent the violation of Americans' Fourth Amendment rights, and court oversight is an indispensable part of the system of checks and balances that gives these rights meaning.

You have to be careful, of course, not to read too much into what people write, particularly when it is stated in the form of vague principles, not concrete policies. But Mukasey's perspective on these issues is undoubtedly informed by his long tenure as a federal judge. And that makes me at least cautiously optimistic that he appreciates the important constitutional role that the legislative and judicial branches have to play even when it comes to issues of national security. If I'm right, Mukasey will be a huge improvement over his predecessor.