Blog
Published on September 17, 2007
The confirmation of a new Attorney General provides an opportunity to change course at the Department of Justice. President Bush has nominated Judge Michael B. Mukasey to fill this critically important position as the nation’s top law enforcement officer. In matters of national security, the Attorney General is responsible for prosecuting criminals while guaranteeing the rights of Americans. In his Senate Judiciary Committee hearing, it will be up to Judge Mukasey to reassure Americans that, if confirmed, he will uphold the rule of law and reject the abuses of his predecessor. In advance of the hearings, here’s some background on Judge Mukasey.
Background on Michael B. Mukasey
Trial of Jose Padilla: Judge Mukasey supported granting terror suspects who are U.S. citizens select constitutional protections. While he ruled that the government had the power to detain Jose Padilla as an enemy combatant, he stood up to pressure from the Bush Administration and demanded that Mr. Padilla have access to counsel. He also ruled that Mr. Padilla was entitled to see the government’s evidence against him.
Judge Mukasey ruled that the government has the power to detain enemy combatants, regardless of their citizenship or place of capture. Judge Mukasey decided that the President is authorized by his powers as Commander in Chief and by the Joint Resolution for the Authorization for Use of Military Force. His powers cannot be questioned so long as U.S. troops are in Afghanistan and Pakistan seeking al Qaeda fighters: “At some point in the future, when operations against al Qaeda fighters end, or the operational capacity of al Qaeda is effectively destroyed, there may be occasion to debate the legality of continuing to hold prisoners based on their connection to al Qaeda…”
But, Judge Mukasey also ruled that Padilla must be allowed access to counsel in order for the courts to fairly consider the government’s designation of Padilla as an enemy combatant. “…Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel.”
And Judge Mukasey stood up to pressure from the Bush Administration to change his ruling. “When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney’s office insisted on sending Olson’s deputy, Paul Clement, on what Justice Department lawyers called ‘a suicide mission’: to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Judge Mukasey derided the government’s ‘pinched legalism’ and added acidly that his order was ‘not a suggestion or request.’”
Judge Mukasey also disagreed with the government that “some evidence” was all that was necessary to hold Padilla as an enemy combatant. He stated “…I cannot confirm that Padilla has not been arbitrarily detained without giving him an opportunity to respond to the government’s allegations…Arbitrary deprivation of liberty violates the Due Process Clause, which ‘applies to all “persons” within the United States.” Judge Mukasey ruled that Mr. Padilla had the right to review the evidence and to contest its validity.
Judge Mukasey has defended the use of the material witness statute to detain terrorist suspects without charges.
In Padilla Judge Mukasey signed the material witness warrant authorizing Padilla’s detention.
In Re Material Witness Warrant Judge Mukasey broke with the precedent established in Awadallah, arguing that the material witness statute may be used to detain terrorist suspects for grand jury proceedings and that it does not violate the Fourth Amendment, stating: “[t]he duty to disclose knowledge of crime rests upon all citizens” and “is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” He also based his argument on the fact that it is difficult to determine the need for testimonial evidence prior to trial, calling such suppositions “at best an imponderable undertaking.”
Following the attacks of 9/11, Judge Mukasey closed all material witness court hearings and court documents associated with a grand jury investigation to the press and the public.
In a forum held by the NYC bar association, Judge Mukasey defended charges that judges have failed to resist prosecutors’ broad use of the material witness statute, arguing that witnesses are quickly brought before judges to determine the fairness of their detention.
Judge Mukasey has expressed concern over using U.S. federal courts to hear cases involving terror suspects.
Judge Mukasey argued that Padilla’s case should not have been heard in a U.S. federal court because terror trials require too much time and too many resources and risk disclosure of U.S. intelligence methods to our enemies.
Judge Mukasey argued that after the government was required to turn over a list of 200 unindicted co-conspirators in Rahman (1995 trial of Sheik Omar Abdel Rahman and 9 co-defendants, charged with participating in the 1993 World Trade Center bombing, plotting to destroy the UN, FBI offices and other NYC landmarks, and proposing the assassination of the Egyptian president), Osama bin Laden had the list within 10 days, thus notifying bin Laden that the U.S was aware of his involvement.
Judge Mukasey has expressed views favoring administrative detention – the imprisonment of detainees without trial.
In his Wall Street Journal op-ed, Judge Mukasey urges lawmakers to consider the creation of an alternative national security law enforcement system, and laments the lack of a law authorizing pre-trial detention in the United States. In the piece, Judge Mukasey speculates that the government’s designation of Mr. Padilla as an enemy combatant might have been due to his being, “more valuable as a potential intelligence source than as a defendant.”
But there actually is not an “either/or” choice between intelligence gathering and criminal prosecution.
