HH: To discuss Judge Mukasey with us is now Ms. Frances Townsend. She is the assistant to the President for Homeland Security and Counterterrorism. She knows of which she speaks when it comes to the national security issues confronting us in domestic things. Ms. Townsend, what do you make of Judge Mukasey?
FT: Judge Mukasey has a stellar reputation, and a well-established record. I can remember, Hugh, when I was a young assistant in the southern district of New York. The judge, Judge Mukasey had already moved to the federal bench, but he was well-regarded, and really viewed as a hero by the career prosecutors. He had tried many cases in the office, he had moved onto the federal bench, he was a fabulous jurist, well-respected and well-regarded in the southern district. And really, he was someone that many of the young assistants in the office looked up to.
HH: He’s perhaps best known for presiding over the trial of the blind sheikh, a very difficult trial. That’s figuring prominently in the write-up about him. Ought it to, Ms. Townsend?
FT: That’s right. In fact, that case was tried, one of the prosecutors who tried that case was Andy McCarthy. Andy now writes for National Review Online. He was my trial partner in a number of cases. And I can remember at the time, I was down at main Justice helping to support the litigation, and the prosecutors really thought he was fair, he was tough, he was strong in very difficult circumstances with many complicated issues confronting him. Judge Mukasey had done a terrific job in that case.
HH: Now you’re a veteran of main Justice, as you mentioned, and people won’t know the office, but the counsel for intelligence policy is a very important job. It oversees the FISA applications and the proceedings before the Foreign Intelligence Surveillance Court, among many other things. Does the judge get that, that secret court and that whole approach to intelligence gathering?
FT: Absolutely. You know, while his public record obviously qualifies him in the criminal area, during the course of the blind sheikh trial, he confronted many national security law issues, including those related to the Foreign Intelligence Surveillance Act. And so the Judge has got really deep experience on both the criminal and the national security law side that will serve him well as he confronts his nomination and his hearing.
HH: Now, what a surprise, there is a lot of posturing going on in the Hill today, Senator Leahy has said this isn’t going to be a pushover, Senator Reid has said it is going to be a pushover, et cetera. What could you imagine being the attack of the left on Judge Mukasey? I mean, you’ve spent 19 years on the federal bench, there isn’t much to go after.
FT: No, I mean, he spent all that time on the federal bench. Six of those years, he was the chief judge. There was a defense lawyer in one of these terrorism trials that he was on who lauded him, and said how fair he was. I mean, he’s been well-regarded not just by prosecutors, but on the defense side of the bar as well, because of his thoughtful approach and his fair treatment of the lawyers and the issues on both sides. And so, I don’t think that frankly, if it’s a pushover, it’s a pushover on the merits of this particular candidate. I mean, I can’t think of anybody better qualified.
HH: I’m talking to Frances Townsend. She is of course the assistant to the President for Homeland Security and Counterterrorism. Ms. Townsend, the rap among conservatives is he’s not Ted Olson, that nobody’s Ted Olson when it comes to arguing in front of the Supreme Court, except maybe Paul Clement. But what is the response around the White House today to the conservatives who are saying oh, we gave up without a fight?
FT: Well, look, Ted Olson is a brilliant lawyer, and well-regarded not only in Washington, but around the country. This was a field of eminently qualified candidates. I mean, you know, you’ve heard that names that were reported publicly. The President looked at this very seriously. It was very considered. And frankly, it was a question of not only who are the best and the brightest. The best and the brightest were on the list. But it was a whole host of things, quick confirmation, who was confirmable, who would represent the views of the President and the administration. And so, the President made his selection. I think the world of Ted Olson, more important, as does the President, but this is really, he couldn’t have picked a better guy than Mike Mukasey.
HH: The Judge is also said to be a close associate of Rudy Giuliani. Is the President tipping a hand here in the nomination process about his preference for a successor?
FT: The President decided this straight up on the merits of the nomination, and the credentials of Judge Mukasey. I can tell you, I also served under Rudy Giuliani in the U.S. Attorney’s office. The beauty of that office is it attracts very qualified and experienced lawyers. It is a close fraternity, so of course he knows Rudy Giuliani. They were also partners together at Patterson Belknap. But that’s got nothing to do with, I don’t think that influenced the President’s decision one way or another.
HH: What’s his practice been at Patterson?
FT: You know, I’ll tell you, because I’ve been in government and down here in Washington, I’m really not familiar with his private practice at Patterson Belknap.
HH: All right. If I can, while I’ve got you, Ms. Townsend…
HH: Talk a little bit about terrorism more broadly. Last week, arrests in Austria, the week before, Denmark and Germany, a bomb plot foiled in Ankara, Turkey. Obviously, the jihadists were trying to pull something off last week. What about the profile in the United States? What have you been telling the President in his briefings about the security situation right now in the U.S?
FT: Well, as we know from the recently released National Intelligence Estimate on the threat to the homeland, the intelligence community has warned us we are in a period of heightened threat. You’ve mentioned all the arrests, and there were the two incidents in Algeria, one targeting President Bouteflika down there by extremists. They were targeting him for assassination. Clearly, we see this activity around the world. We know that al Qaeda continues to target, and their ultimate goal being a massive attack here inside the United States. The FBI and the intelligence community are very focused on that, but we have to be, we can’t afford to take a whole lot of comfort from the fact that we’ve been six years without an attack. We look for cells here in the United States through the FBI, we look and work with our allies around the world to target al Qaeda overseas, and it’s really important, Hugh, that we focus on the authorities. They’ve been critical in preventing the next attack, whether that’s the reauthorized Patriot Act, the FISA reform, which by the way, is only temporary and expires in February. We’ve got to get that permanent. We need those tools to be successful in the long term.
HH: Can you tell us about the arrests in South Carolina of the two students from South Florida International University, I think that’s what they were from?
FT: You know, there are portions of that that continue to be ongoing, and so I’d prefer at this point not to speak about it.
HH: Do you believe it was a terrorism incident, though?
FT: No question there are aspects of this, yes, that are ongoing as part of a terrorism investigation.
HH: One last question…
HH: …since it came up last week on that one, did they have literature with them that was jihadist in nature?
FT: Don’t want to speak, because much of this will come out in a public trial, you know, all are innocent until proven guilty, and so I really don’t want to prejudice in any way the trial.
HH: All right, last week, we had a ruling from a district court federal judge of the sort that Judge Mukasey was before he retired, that threw out parts of the Patriot Act, these letters that were received. What was your reaction to that decision? Is the government intent on appealing it quickly?
FT: Well, as you know, this is a just who’s given an indication of his belief, and his feelings about the Patriot Act before. The Justice Department is reviewing his decision, and reviewing their options, frankly, to appeal that. I will tell you, the FBI takes seriously both not only its authorities, but its obligations under the Patriot Act. The FBI director has created a new compliance unit to ensure that they’re using those authorities appropriately. And I will tell you, we have disrupted terrorist plots in this country by use of those authorities, and they are critical. And so I think that it is fair to say we are using those authorities consistent with law.
HH: I interviewed Walid Phares last week about the number of active jihadis, or what he calls pre-jihadis and jihadis in the United States, and got his estimates on those numbers. What number do you put on those, Ms. Townsend?
FT: You know, I have a lot of respect for Walid Phares. I don’t know that you can put a precise number. I always worry about when we give numbers, we give numbers based on what we know. And I think it’s very difficult, because you never know what you don’t know, which is one of the reasons that we use things like the Patriot Act and the FISA to identify people who are communicating with those inside the United States, because that’s a key lead for us to identify those cells. So I think it’s difficult to put numbers on it.
HH: Is it more than a thousand?
FT: Hard to say. I don’t want to get in a numbers game with you, Hugh.
HH: Now that’s interesting, but if the public doesn’t know the extent of the threat, do they take the threat to the extent they should?
FT: Well, I mean, when you look at the activities in Germany and Denmark and Algeria and around the world, I think we’d be foolish not to take that threat seriously. We know what their ultimate goal is, which is an attack here in the U.S., and we can’t presume if that’s their goal that they’re only active in these European and North African countries. It’s not the case. They clearly would like to launch an attack here, and will take steps to plan and plot to do that.
HH: But I’ve actually advocated this in the White House for a long time in regards to specificity, because again, that’s over there. Do we have a jihadist problem in the United States? Let me put it that way.
FT: We absolutely follow leads to identify what problem we do have in the United States. We’ve seen disruptions in places like Fort Dix and the JFK plot recently, and so we know that we do have a jihadist problem. And to the extent we investigate, disrupt and disassemble that, and it continues to be a high priority for the FBI.
HH: And in 20 seconds, did Judge Mukasey agree with the President about the reauthorized FISA that it needs to be reauthorized again?
FT: I’ll let Judge Mukasey speak for himself, but I think you can expect that he shares the President’s legal view of that issue.
HH: I so appreciate the time, Frances Townsend, assistant to the President for Homeland Security and Counterterrorism. Look forward to talking to you again soon.
End of interview.