Michael Mukasey, Robert Jackson and George Orwell

Marty Lederman

The Attorney General has hung two portraits in his office -- of two of the very finest wartime English-language writers of the modern era:

The first is of Justice, and Attorney General, Robert Jackson, author of the famous Youngstown concurrence (mention of which was so conspicuously absent from DOJ memos earlier in the Bush Administration concerning presidential and legislative war powers).

A promising omen, perhaps? Jackson, of course, went from the Attorney General's office to the bench. One of the more important passages from his Steel Seizure opinion -- less famous than the tripartite scheme for assessing executive power, but in the view of some (cue Sandy), equally noteworthy -- is the opening paragraph, where Jackson explains that the view from the bench can be quite different from the perspective of a presidential advisor in wartime:

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But, as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.

In retrospect, we now know that this passage was written largely because Justice Jackson recognized that AG Jackson had engaged or acquiesced in some conduct that was very difficult, if not impossible, to defend -- most significantly, FDR's and Hoover's unlawful wiretapping; possibly also Jackson's own defense of the sale of destroyers to England (although personally I've come to think that was a closer legal question than many have assumed), and of the seizure of various domestic enterprises.

Michael Mukasey, of course, has moved in the opposite direction: from the bench to the Attorney General's office. What effect might his former judicial perspective have on the executive actor's ability to recognize and overcome "mental hazards," such as the natural tendency in times of crisis and anxiety to emphasize "transient results" over "enduring consequences"? Only time will tell.

The second portrait on Judge Mukasey's wall is of George Orwell. It seems that Judge Mukasey is a big fan of Orwell, especially of his renowned 1946 essay, "Politics and the English Language." Justice Department spokesman Peter Carr explained that when Mukasey was a judge, he assigned that essay to his incoming law clerks, and "[i]t's one of the first things our speechwriter received as well," said Carr.

In that essay, Orwell famously wrote of how, "[i]n our time, political speech and writing are largely the defence of the indefensible."

This coming Wednesday, during the DOJ oversight hearing, if the Attorney General is asked whether waterboarding is "torture" or "cruel treatment"; if he is asked whether stress positions and severe sleep and sensory deprivation are intended to result in "severe physical or mental pain or suffering"; and if he responds that those are difficult questions that can only be analyzed by careful parsing of (secret) OLC memos -- if he uses the euphemism "enhanced interrogation techniques," which comes from the German "verschärfte Vernehmung," a phrase coined by the Gestapo and the Sicherheitsdienst in 1937 -- it might be well to keep in mind what Orwell had to say about the degradation of speech as it is put to the task of defending the indefensible:

Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.

[UPDATE: Much, much more on these topics from emptywheel and from Scott Horton.]
Posted 1:26 PM by Marty Lederman [link]