Monday, October 1, 2007

Longtime federal judge Michael Mukasey, nominated by the president to succeed Alberto Gonzales as attorney general, is widely respected by lawyers and judges, including defense attorneys who have sparred with him in highly visible cases. In Congress, as “a consensus choice” of the president, he has support on both sides of the aisle. But, if I had been a member of the Senate Judiciary Committee, there are questions I would have asked him.

I am neither a Republican, nor, anymore, a Democrat. My vote depends on any public official’s history of commitment regarding the Constitution. In an August op-ed in the Wall Street Journal, Mr. Mukasey (who retired from the federal judiciary last year) wrote, troubling to me, that in warring against terrorism, “current institutions are not well-suited,” so Congress must “fix a strained and mismatched legal system.” This asserted need to revise our rule of law has been the ardently held view of the Bush-Cheney administration since shortly after September 11. Their adjusting of our legal system has produced in the Justice Department (and other agencies) rationalizations for warrantless surveillance of American citizens; for the CIA’s secret prisons (“black sites” impossible to find in the Constitution); and for the denial by the president and Congress (in the 2006 Military Commissions Act) of habeas corpus rights to terrorism suspects, despite a Supreme Court ruling to the contrary.

In a 2004 article in The Wall Street Journal, Mr. Mukasey argued that while the Constitution’s first 10 amendments (the Bill of Rights) are noble, if you give constitutional prominence to these rights of individuals against the government, “then citizens will feel much less inclined to sacrifice in behalf of their government.” (Sacrifice their individual liberties?) In that same article, he added, as the Bush administration also has with regard to these perilous times, that “at least in the first instance,” citizens should give the government “the benefit of the doubt.” (The most secretive government in our history?)

Should the president get the benefit of the doubt when he more often than any of his predecessors adds “signing statements” to the bills he has signed into law, saying that he will not obey certain provisions, if, in his sole opinion, they endanger national security? Mr. Mukasey’s predecessor as attorney general, Mr. Gonzales, saw nothing wrong with these signing statements, which supposedly smooth out our “strained legal system.” Does the next attorney general agree with this exercise of unitary executive power? When Dana Priest, a reporter for The Washington Post, reported on secret CIA “renditions” of terror suspects to countries known for torturing their prisoners and then went on to reveal the existence of classified CIA secret prisons in Eastern Europe, Mr. Gonzales began a criminal investigation of her.

Nonetheless, for that reporting, Mrs. Priest was awarded the Pulitzer Prize. Does the next attorney general consider the Pulitzer Prize Board to have been unpatriotic? Mr. Gonzales revived prosecution under the Espionage Act in a case that also includes journalists and is still in the courts. Would Mr. Mukasey use the Espionage Act against reporters whose stories include any kind of classified information? This administration, more than any others in the past, has used the “state secrets” privilege to prevent certain cases from even being heard in our courts on the grounds of national security. What will be the new attorney general’s criteria be in deciding when to deny this fundamental due process in cases also including American citizens?

Mr. Mukasey has expressed support for the Patriot Act. Does that include the expansion in the 2006 congressional revisions of the FBI’s powers to obtain private personal records from Internet and telephone companies, banks and other sources without a court warrant? In a recent Federal District Court decision, Judge Victor Marrero described the FBI’s secret national security letters harvesting information about persons who are not allowed to be told it is happening as “the hijacking of constitutional values.” Last year, the Supreme Court, in Hamdi v. Rumsfeld, ruled that with regard to the prisoners at Guantanamo Bay and other detainees, Common Article 3 of the Geneva Conventions (which this nation has signed) must apply. Article 3 requires that detainees be tried “by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people.” Does Mr. Mukasey, an adviser to former New York Mayor Rudy Giuliani’s campaign, believe that the president’s military commissions at Guantanamo — at which the detainees cannot have nonmilitary lawyers and cannot see all the evidence against them — meet this Supreme Court definition? If he disagrees as the nation’s chief law enforcement officer, what action will he take? Mr. Mukasey could continue as attorney general if Mr. Giuliani is elected president.

Finally, in the long war on terror, does he regard it as necessary in certain situations to limit the constitutional separation of powers to defer to an “inherent constitutional power” of the president?

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