Mukasey and Executive Power

18 09 2007

(For more posts on Judge Mukasey click here.) 

Though the nomination of Judge Michael Mukasey is far more preferable to that of the hyperpartisan former Solicitor General Ted Olson, the Senate Judiciary Committee should certainly probe his views of executive power before confirming him. His full throated support of the Patriot Act alone merit serious attention. In a 2004 piece for the Wall Street Journal, Judge Mukasey said

“… some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide. That is not many when you realize that they investigate not only terrorism, but also every other federal crime aside from counterfeiting, tax evasion and mail fraud; that they share responsibility for drug investigations with the Drug Enforcement Administration–a pretty hefty set of assignments–and that they had numerous leads as to those responsible for the attack on Sept. 11. Under those circumstances–with many leads to work on and relatively few agents to do that work–does it really stand to reason that they spent their time rounding people up based on nothing other than religion and ethnicity?

Now compare that statement with the Human Right Watch‘s, and the Justice Department’s own internal investigations:

In the wake of the September 11th attacks, the Justice Department detained over 1,200 non-citizens, primarily from Middle Eastern, South Asian, and North African countries. The government used immigration charges as a pretext to detain 766 non-citizens while it investigated possible links to terrorism. At most, no more than a handful of these “special interest” detainees have been charged with a terrorism-related crime.

Perhaps, Mukasey is naive enough to think that the these pretextual arrests were truly done to enforce the immigration laws and not a proxy for racial profiling. Or maybe he genuinely believed federal investigators were enforcing the law fairly and impartially. Either way it does suggest that Mukasey somehow developed a permissive, if not indifferent, attitude toward these dragnets. In fact, Mukasey in the same piece says,

But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences.

Perhaps, Judge Mukasey thinks such racial profiling is just the result of “fallible human beings” or “overinclusiveness” of the investigations. Perhaps not. But either way he should explain reasoning. Additionally, the very fact that Mukasey, mentions all of this as in an almost perfunctionary and dismissive tone suggests that such pertextual roundups can be shrugged off do not deserve reexamination, not to mention callous indifference. Hopefully, the Senate Judiciary Committee will scrutinize these positions.

Another notion that should be thoroughly probed is his contention that federal courts are ill-suited to trying accused terrorists and so-called enemy combatants. This is a rather curious assertion considering that virtually no one made such arguments until proponents of the war on terror, mainly those in the Bush administration, sought to strip enemy combatants of their habeas corpus rights. Moreover, Mukasey did not seem to think the federal court system was inadequate when he presided over the trial of Omar Abdel Rahman, aka “the blind sheik,” and 11 others for their role in the 1993 bombing. One would think he would have voiced his objections to trying presumed terrorists suspects then.

Another sobering revelation is how as a Judge Mukasey upheld a statute permitting the government to detain certain South Asian, Muslim, or Arab men, some of whom were citizens, indefinitely as “material witnesses” for terrorist investigations for a grand jury testimony. In such instances, the government should have brought these men before a grand jury questioned them, and then release them if they had no real information, as they often did prior to 9/11.  If the men are connected to an ongoing probe, then they should be promptly charged, not detained for months on end with limited access to an attorney. In fact, some federal judges said exactly that, while Mukasey did not. Again Mukasey should offer his reasons for doing so.

Of course, there are those who will say at least Mukasey had the courage to buck the administration in determining that Jose Padilla should have access to legal counsel, but let’s be clear here. In the American justice system, whether someone is a citizen or not, every person has a right to an attorney. It is sad to think that Judges are considered heroic for honoring a right that has been a mainstay of the nation’s legal tradition.

More importantly, these troubling views also suggest that Michael Mukasey subscribes to a rather expansive view of executive power that should be carefully probed before confirming him to become the nation’s top law enforcement officer. Otherwise, who knows what he would in the wake of another attack?  And who knows if he would exactly what the country would like to avoid — namely another Alberto Gonzales?

Note: Mukasey has reportedly claimed his confidence in the federal court system to try terrorists was in fact shaken after the 1995 trial of the blind shiek.  

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