Mukasey seems to be the talk of town today. Jewish groups and Israelis are thrilled because he will be the second Jewish Attorney General in history. The first Jewish U.S. attorney general was Edward Hirsch Levi, in 1975.
Many Democrats came out in opposition to Mukasey after he refused to say unequivocally that so-called waterboarding – an interrogation technique that makes the victim believe he is drowning – is tantamount to torture and thus illegal under domestic and international law. Mukasey rankled Democrats during his confirmation hearing by saying he was not familiar with the waterboarding technique and could not say whether it was torture.
Legal experts cautioned that if Mukasey called it torture, that effectively could have constituted an admission that the United States engaged in war crimes. It could also commit him to prosecuting U.S. officials even before he takes office..
But why is it important that Mukasey, a 66-year-old retired federal judge and Modern-Orthodox Jew from New York, is recognized in the media (Haaretz included) by his religion?
Mukasey, 66, is a lifelong congregant at Kehillath Jeshurun on New York City’s Upper East Side. He was educated at its Ramaz school, and his wife for a time was the school’s headmistress. He is close friends with another congregant, Jay Lefkowitz, a top Washington lawyer and a veteran of the Soviet Jewry advocacy movement who is Bush’s special envoy for human rights in North Korea.
You are entitled to your own conclusion! Here are excerpts from an article by Norman Pearlstine in the WSJ.
An early test of all these traits will come in the next few weeks, when the new attorney general is expected to review the Justice Department’s flawed, embarrassing prosecution of two former lobbyists for AIPAC, the American Israel Public Affairs Committee.
The lobbyists, Steven J. Rosen, and a junior associate, Keith Weissman, are charged under the 1917 Espionage Act with receiving classified information from Lawrence Franklin, then a top Defense Department official. The lobbyists allegedly passed on the information they had received to a reporter for the Washington Post and an Israeli embassy employee.
Much of the information was about Iran’s plans for destabilizing Iraq. Mr. Franklin, who was also indicted, subsequently pleaded guilty and was sentenced to 12 years in prison. Under intense government pressure he has agreed to testify against his friends, the former AIPAC lobbyists. Their trial is set for January.
But Norman Pearlstine, author of this article, has written this simply for one purpose: “The attorney general should drop the chilling “espionage” prosecution against two pro-Israel lobbyists.“
The AIPAC lobbyists are the victims of selective prosecution for behavior that has become commonplace. They did what journalists and lobbyists have been doing since the founding of the republic. That is why so many journalists worry about the case and why some constitutional lawyers believe the Espionage Act is so vague the Supreme Court would conclude it unconstitutional should it have the chance to rule.
The fear of Supreme Court review might explain why there have been so few prosecutions of government leakers for espionage in recent decades and why, before AIPAC, the government had never sought to make receipt of classified information and passing it on to others a crime under the Espionage Act.
Like it or not, the lobbyists were operating in a system in which leaks have become essential to the function of government in Washington. It is often impossible for a journalist or a lobbyist to know whether leaked information is classified. And, surprisingly, the leaking of classified information may be legal, so long as the information has first been declassified.
During pretrial hearings for Messrs. Rosen and Weissman, federal judge T.S. Ellis III complained from the bench that the Espionage Act is overly broad, but he nonetheless ruled in favor of a trial despite the broad implications of his decision. People “who come into unauthorized possession of classified information must abide by the law. That applies to academics, lawyers, journalists, professors, whatever,” he held.
If Americans want and need a British-style Official Secrets Act, we should get it from Congress, not from the courts. Although vigorous pursuit of the indictments might lead to convictions, the new attorney general should withdraw the charges now, overruling the department he has been asked to lead. To do so would require courage, toughness, decency and good sense, but the facts and the law make it the right thing to do.
Mr. Pearlstine, the author of “Off the Record: The Press, the Government, and the War over Anonymous Sources” (Farrar, Straus and Giroux, 2007), is a former managing editor of The Wall Street Journal and a former editor-in-chief of Time Inc.