The Next Attorney General Must Uphold the Rule of Law

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.

  • The law allows the government options: it can charge and not interrogate, or can interrogate and not charge, or can interrogate and then charge.
  • Indeed, the experience of prosecutors and law enforcement officials shows the benefits of criminal charges, including: criminal charges provide the government with leverage that otherwise does not exist, to get information from an individual, and lawyers can persuade their clients to cooperate.
  • See, for example, this DOJ website,, which extols the virtues of using criminal prosecutions and lengthy prison terms as leverage for gathering intelligence: “We are gathering information by leveraging criminal charges and long prison sentences. When individuals realize that they face a long prison term, they often try to lessen their prison time by pleading guilty and cooperating with the government. These individuals have provided critical intelligence about al-Qaida and other terrorist groups, safehouses, training camps, recruitment, and tactics in the United States, and the operations of those terrorists who mean to do Americans harm.”
  • Members of the law enforcement community take exception to an either/or view. Former FBI agent Jack Cloonan says that in the FBI “thousands and thousands of cases were opened up on people with no intention to go into court. Most of FBI’s work in terrorism cases was classified and was intended to prevent – surveillance, finance. So much was devoted to the prevention side. The fact that some cases were prosecuted was only the tip of the iceberg. Most cases were not being prosecuted.” And Mark Fallon, the former CITF deputy commander disputes that dichotomization as well. “’It was our job to prevent the next attack . . . Anyone in the United States government’s job, particularly someone who is a federal agent, law enforcement officer, is to prevent the next attack against the United States.”
  • Recent experience shows that a danger of positing a “choice” is based on policies that have allowed “potential intelligence sources” to be subjected to torture or cruelty whereas a “defendant” could not be tortured or otherwise compelled to give evidence. This is wrong in any case.

Published on September 17, 2007


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