Mukasey
I pretty much agree with everything Glenn says here about Michael Mukasey. While he is certainly conservative (which is to be expected), he has a demonstrated track record of independent-mindedness. He was willing to stand up to the Bush administration in the Padilla case at a time when many judges would have been too intimidated. He's intelligent, well-respected, and has a reputation among litigators for being fair.
As Glenn points out, Mukasey's ruling that the Bush administration had the Article II authority to detain Jose Padilla as an "enemy combatant," despite the fact that he was a U.S. citizen detained within the U.S., was certainly questionable on the merits (which is why it was subsequently overruled by the Second Circuit). But when it comes to an Attorney General, I'm less concerned about the nominee's legal conclusions in individual cases than I am with his respect for the system generally. I'm confident that Mukasey would have respected the Second Circuit's ruling had he been presented with another case like Padilla's. He understands that there's a difference between what you think the law should be and what the law actually is. And as a former judge, I'm confident that he understands the important role that the judiciary plays in reviewing detention and surveillance activities. And that's the difference between him and someone like David Addington, who has no respect for controlling legal precedent and harbors only disdain for the judiciary.
While I certainly think that Democrats in the Senate should press Mukasey for promises of cooperation with various ongoing investigations, I don't expect they'll offer much substantive resistance to his nomination. Nor do I think they should. As I wrote previously, the most important thing is that the new Attorney General be someone who has a reputation for independence and who respects the rule of law. I think Mukasey fits the bill (which is I why I'm still pretty shocked that Bush plans to nominate him). Mukasey certainly isn't the person I would choose to be Attorney General, but given that President Bush is the one doing the selecting, he could do a lot worse than Michael Mukasey.
As Glenn points out, Mukasey's ruling that the Bush administration had the Article II authority to detain Jose Padilla as an "enemy combatant," despite the fact that he was a U.S. citizen detained within the U.S., was certainly questionable on the merits (which is why it was subsequently overruled by the Second Circuit). But when it comes to an Attorney General, I'm less concerned about the nominee's legal conclusions in individual cases than I am with his respect for the system generally. I'm confident that Mukasey would have respected the Second Circuit's ruling had he been presented with another case like Padilla's. He understands that there's a difference between what you think the law should be and what the law actually is. And as a former judge, I'm confident that he understands the important role that the judiciary plays in reviewing detention and surveillance activities. And that's the difference between him and someone like David Addington, who has no respect for controlling legal precedent and harbors only disdain for the judiciary.
While I certainly think that Democrats in the Senate should press Mukasey for promises of cooperation with various ongoing investigations, I don't expect they'll offer much substantive resistance to his nomination. Nor do I think they should. As I wrote previously, the most important thing is that the new Attorney General be someone who has a reputation for independence and who respects the rule of law. I think Mukasey fits the bill (which is I why I'm still pretty shocked that Bush plans to nominate him). Mukasey certainly isn't the person I would choose to be Attorney General, but given that President Bush is the one doing the selecting, he could do a lot worse than Michael Mukasey.
posted by A.L. at 4:55 PM
6 Comments:
We of the "liberal" bent shouldn't assume all "conservatives" are anal retentive sots.
A tendency toward conservatism doesn't equate to mind-dead.
My experience shows me some conservatives can be quite reasonable. However, none of those such are in Bush's bubble. I just hope this one is outside the bubble.
And yet, somehow it still feels like we're being played. As a wise man told me once, "The fix is always in." pontificator over at Daily Kos had this to say:
What's needed is a firm commitment by Mukasey at his confirmation hearings to clean up the mess and restore the independence and integrity of the DOJ. That includes clean, unambiguous commitments by Mukasey to, at the very minimum:
1. Appoint an independent prosecutor to investigate perjury, criminal Hatch act violations, obstruction of justice, and other crimes incidental to the USA attorney firing scandal (although this can be commenced after the OIG report is complete, which is rumoured to be within a matter of weeks);
2. Commit to use the full power of the AG to assure that US Attorney for District Columbia will prosecute Congressional Contempt citations;
3. Waive "executive privilege" with respect to the outstanding document and testimonial requests related to the Congressional investigations involving the Justice Department (he would have to promise to be independent and not to take orders from Fred Fielding and/or the White House).
That Firedoglake post by looseheadprop that Greenwald links also has some good exploration of Mukasey and his Wall Street Journal editorial.
But, is he going to take steps to repair the damage to the DoJ that happened under Gonzales' watch? Sideline all those Bushies? Depoliticize the US Attorneys?
Great if he's not a mouth-foaming Bushie, but there's a lot of damage to be repaired.
While the WH certainly could have(and has) made worse selections, I still think the senate should not confirm him, based on the Padilla habeas thing.
That said, it won't be the end of the world should he be confirmed--your opinion, and Greenwald's, are reassuring on this.
Since retiring from the bench, Mukasey has made campaign contributions to Giuliani for president and Joe Lieberman for Senate. In May 2004, while still a member of the judiciary, Judge Mukasey delivered a speech (which he converted into a Wall Street Journal opinion piece) that defended the Patriot Act; the piece also doubted that the FBI engaged in racial profiling of Arabs and criticized the American Library Association for condemning the Patriot Act but not taking a position on librarians imprisoned in Cuba. In May 2004, while still a member of the judiciary, Judge Mukasey delivered a speech (which he converted into a Wall Street Journal opinion piece) that defended the Patriot Act; the piece also doubted that the FBI engaged in racial profiling of Arabs and criticized the American Library Association for condemning the Patriot Act but not taking a position on librarians imprisoned in Cuba. Mukasey's son, Marc L. Mukasey, leads the white-collar criminal defense practice in the New York office of Bracewell & Giuliani. The Mukaseys have a professional relationship with Rudy Giuliani; Mukasey and son are also justice advisers to Rudy Giuliani's presidential campaign. Mukasey swore in Mayor-elect Giuliani in 1994 and 1998.
There are some interesting questions about Mukasey. He presided over the 1995 terrorism trial of Sheikh Omar Abdel Rahman in the New York's bridges and tunnels plot. Defence lawyers sought to call Ali Mohamed, close colleague of bin Laden who had been involved in previous terrorism attacks in NY (the killing of Rabbi Meier Kahane in 1990 and the 1993 WTC bombing). Mohamed also went on to help in the Kenya embassy bombing and he allegedly helped train the 9/11 hijackers. Now here's where it gets interesting:
Mohamed was a US Special Forces Ranger. He was involved in every al Qaeda plot in the US from 1990 onwards, and simultaneously an informant for the FBI ( and likely the CIA). For four years Mohamed was allowed to move in and out of the country as an unindicted conspirator. Then, unlike his trainees, he was allowed to plea-bargain. To this day he may still not have been sentenced for any crime, and may even be in witness protection.
The FBI did not want Mohamed to appear at Abdel Rahman's 1995 trial because it would show up FBI failures on the two previous terrorist attacks. Mukasey allowed the FBI not to produce this witness and refused to advise the jury (as required by law) that they were entitled to draw inferences favorable to the defence. Author Peter Lance has argued that Mukasey's refusal to call Mohamed allowed him to go forward with al Qaeda efforts in Kenya and for 9/11. In effect, we might have stopped 9/11 in 1995 -- or at least slowed it down -- had not Mukasey allowed the FBI to hide their failures and their secrets. (See also 1 2 3 4)
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