Mukasey speaking at the Center for Law & Counterterrorism. 01/24/2007
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Reining in the Lawless White House
Attorney General nominee, Judge Michael B. Mukasey was under FBI protection for 11 years due to threats after presiding over major terrorist trials. Commenting on the FBI’s decision to end protection even though some safety concerns remained, the judge said “I’m not complaining. I rather like it, being normal.”
A review of his legal history portrays Judge Mukasey as a highly intelligent and capable jurist who stands his ground and displays sympathy for the underdog. His writing outside of court reveals a traditional conservative bias with a willingness to engage in dialog.
New York Senator Charles Schumer (D) suggested him for attorney general. Schumer told reporters, “While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria.” Schumer is a major figure in both the Senate and national Democratic Party leadership. Ironically, Schumer is probably more responsible than any for the job opening as a result of his skilled interrogation of the former Attorney General.
What more does it take to get approved? But approval is not the issue.
The U.S. Attorney General v. A Lawless Administration
The real concern is simple. Can this nominee reign in and stop the ongoing illegal acts of the Bush-Cheney administration? The White House sat idly by while Enron, run by a major Bush contributor, created a fake energy crisis in California and took billions of dollars from helpless citizens in a matter of months. They neglected their duties while people starved and died in New Orleans. They stood by while financial institutions more than doubled their profits with payment and other policies seemingly designed to produce high penalties.
All that pales by comparison to the Iraq War. There are nearly 4,000 Americans casualties plus tens of thousands injured for life. A study by researchers at Johns Hopkins University published in 2004 placed Iraqi civilian deaths at 600,000. This month, a British polling group reported that the figure has risen to 1,000,000 civilian deaths. These staggering figures refer to people, civilian non combatants, who would be alive were it not for the Bush-Cheney invasion.
There are now signs that Bush-Cheney planning for a strike against Iran. That would result in even more dead and injured based on justifications as vacant as those used for the Iraq invasion.
All this leads to the key question. What can we expect from Judge Mukasey as the United States Attorney General?
The Judge’s Big Cases
Let’s look at how he handled two very big cases.
In 2002, Jose Padilla, a U.S. Citizen, was arrested as a material witness and eventually charged with terrorist activities. Judge Mukasey issued the order for the arrest and detention. Yet the White House objected to the man even having an attorney. They argued intensely that Padilla must be denied legal counsel since any attorney-client contact would result in the defendant leaking information to associates through his attorney.
Mukasey was a judge of the U. S.. District Court, Southern District of New York, a position that he held for nearly two decades. He ruled that Padilla had the right to counsel; the right to see and work with a lawyer. His 2002 ruling was clear.
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. On the facts presented in this case, the balance weighs heavily in Padilla’s favor.
The White House was outraged at the very thought of this defendant having an attorney. They were also upset with Mukasey. The Washington Post reported that “Cheney’s office insisted on sending (Ted) 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.”
Mukasey was not amused. He had already decided the case. Padilla had a right to counsel. Rather than accept that and move forward, the White House challenged his intelligence and skill as a judge based on petty technicalities.
In reaffirming his original order, Judge Mukasey issued a devastating retort: “The government’s arguments here are permeated with the pinched legalism one usually encounters from non-lawyers.” In this case, the Judge was sending a message to the trial lawyers and the absent Solicitor General, Ted Olson. He judged their arguments amateurish.
In the Sheik Abdel-Rahman case, Judge Mukasey faced Rahman and nine codefendants charged with planning a series of terror attacks in the New York City. FBI tapes of Rahman’s crew produced highly disturbing plans:
The most startling plan, the government charged, was to set off five bombs in 10 minutes, blowing up the United Nations, the Lincoln and Holland tunnels, the George Washington Bridge and a federal building housing the FBI.
The Sheik and the nine plot partners were found guilty, although two co-defendants were acquitted of some charges. Before sentencing, Mukasey listened to Rahman’s lecture and excoriation for over an hour. The Sheik attacked the judge for conducting an unfair trial and failing to learn about Islam, all the while claiming that he was a simple preacher of the word.
Then Mukasey had his turn: “This country has experienced militant fascism that failed and militant communism that failed,” Judge Mukasey said, adding that “you and the others sentenced today will never be in a position to commit such crimes again.” He sentenced Rahman to life in prison.
More Routine Judging – Equity and Humor
Mukasey handled the case of Susan P. Lindauer who was accused of being an Iraqi intelligence agent in an 11 count indictment in 2003. A number of psychiatrists determined that she had a serious mental illness which involved paranoid and persecutory delusions and hallucinations.
While the he government held her without bail, it petitioned Judge Mukasey to allow the forced administration of antipsychotic medication. The argument was that symptom relief would restore Ms. Lindauer to reality and thus allow a trial.
Judge Mukasey was quick to point out that “There is no indication that Lindauer ever came close to influencing anyone, or could have.” He then denied the request for forced medication and had Lindauer released from jail. Her court appointed attorney Sanford Talkin called the decision a difficult one that was both “right” and “just.”
The governments attempt to punish someone in tragic circumstances for a crime not committed was foiled.
The case of independent film makers versus the Motion Picture Association of America is another David v. Goliath case. The association had routinely prevented independents from distributing tapes of their films to screeners and critics prior to film awards events claiming that allowing the practice would encourage film piracy. In effect, this practice put the independents out of business for weeks at a time and caused financial harm. Mukasey ruled that it had to stop since it violated federal antitrust law.
Mukasey took sharp exception to an immigrant smuggler who professed her love for the United States in a bid for lenient treatment. Looking directly at the defendant, the judge responded:
“You are not the victim of fabricated evidence,” Judge Mukasey told her, his tone prickling with indignation. ”You were willing to take advantage of the attraction of the United States for thousands of other people and turn it to your financial advantage.” New York Times 3/17/2006
When Rep. Tom Feeney, (R-FL) threatened to gather confidential material from federal judges to develop profiles of jurists who failed to comply with mandatory sentencing guidelines, Mukasey shared his opinion of that: “They can have their blacklists. But we have life tenure.”
Finally, showing a sense of humor, Mukasey told attorneys for the Tommy Hilfiger fashion empire to “chill” regarding patent concerns about a dog perfume called Timmy Holedigger. He noted dryly, “A statement drawing a likeness between the buyer’s own taste and that of his or her pet is unverifiable puff.”
Two Wall Street Journal Articles Show a More Doctrinaire Side
Mukasey’s Wall Street Journal article defending the Patriot Act will raise concerns. The first is titled “The Spirit of Liberty Before attacking the Patriot Act, try reading it,” Wall Street Journal 5/10/2004
Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists
Law enforcement prior to the act had unreasonable restrictions which limited evidence gathering, he asserted. This was caused by a failure to update laws to match current technology and also through artificial barriers between intelligence gathering and criminal investigation divisions with the same agency, e.g., FBI.
Mukasey asked, “What difference would this make?” referring to the updated provisions in the act.
Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. Wall Street Journal 5/10/2004
His arguments in Jose Padilla Makes Bad Law are more reflective and display some fairly complex reasoning. Taking off on the maxim, big cases make bad law; Mukasey argued that “The history of Padilla’s case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.” He summarizes this in three points:
1) Antiterrorist prosecutions have produced limited results yet strained “the financial and security resources of the federal courts near to the limit.”
2) “… such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.”
3) “…consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.”
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Wall Street Journal, 8/22/07,
This last paragraph is more consistent with the court cases reviewed than the Patriot Act article. Anti terrorist measures are aimed at protecting the people and society as a group. Mukasey argues for what he sees as rational changes in law to catch and foil those who would attack society at large.
His core reasoning proposes that the application of traditional legal rights to fight terrorists conflates two very different efforts, justice for citizens and protection from terrorists. This risks infection of the high standards and protections for citizens with the extreme measures required to stop enemies leading to a less secure society with fewer rights. He expressed a sense of urgency to resolve the contradiction:
Perhaps the world’s greatest deliberative body (the Senate) and the people’s house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results Wall Street Journal 8/22/2007
President Bush today announced his nomination of retired federal judge Michael B. Mukasey… Washington Post 9/17/07
His nomination is hardly a phrase that accurately portrays the process. This is no more Bush’s nomination than the Gonzales departure was a Bush dismissal. There are strong pressures influencing this process. The nominee is not a Bush family friend so far as we know. He’s not a good old boy that Bush can nickname and joke with over a long neck beer. He’s from New York City, born in the Bronx, a committed intellectual and jurist, with an acerbic wit Is there any Bush appointee who matches that profile? He’s also Schumer’s first choice, the man who chased Gonzales out of town.
Somehow the system and the citizens managed to grab one more chance, a last chance maybe, to reign in the lawlessness of the Bush – Cheney administration.
Here are some indicators to track how well Judge Mukasey is doing in his constitutionally mandated task as chief law officer for the United States of America.
Will we see the U.S. Attorneys use convicted felons like Abramoff and Cunningham to indict figures higher in the chain of corruption or will they simply be left on the shelf of bad memories?
Will the Department of Justice investigate and do something about the likely crimes in the Enron episode, the Katrina disaster, and no bid contracts for the Iraq War?
Will the truth be told to Bush – Cheney about lawless behavior like torture and preemptive invasions? This is most critical considering current White House delusions of grandeur associated with an attack on Iran.
Will Mukasey put a stop to the cynical deception called voter fraud, a phony construct perpetrated by the Department of Justice which results ultimately in the disenfranchisement of minority and poor voters? And will he vigorously enforce all elections laws and focus on the crime of election fraud?
Will he keep a distance form the Giuliani campaign? This is critical given his previous association with that effort.
Will he develop some serious skepticism about the good will of the current administration after a few days of looking behind the tattered veil and restrain himself from giving them “the benefit of the doubt.”
Most importantly, will he say to Bush, “No sir, you cannot do that. It’s illegal.”
N.B. A small peek in to the nominee’s demeanor can be gained at this short video clip from the Center for Law and Counterterrorism, 1/24/07. See video Chapter 16. Starts at 01:19:42.
Also see attorney Glenn Greenwald’s commentary on nominee Mukasey in Salon.
Permission to reproduce in whole or part with a link to this article in “Scoop” and attribution of authorship.