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Antoine Morris

Mukasey and Executive Power

As the nation's top law enforcement officer and guardian of our Constitutional rights, the attorney general must ensure fair and impartial administration of justice for all. For this reason, former Judge Michael Mukasey, who is already dubbed as the consensus nominee, should have his record and his judicial views scrutinized by the Senate Judiciary Committee and the full Senate. Just because Mr. Mukasey is not Alberto Gozales or Ted Olson does not mean he should escape careful probing. Serious concerns still remain about Mr. Mukasey’s level of deference to executive power in securing our most basic Constitutional rights.

Judge Mukasey has deservedly garnered high praised in presiding over the 1995 trial of Omar Abdel Rahman and his nine collaborators who plotted to destroy landmarks across New York City, including the United Nations. But he still needs to account for certain troubling aspects of his 19 year tenure on the federal bench. For example, In 2002, Mr. Mukasey sided with President Bush in designating Jose Padilla an enemy combatant after originally being considered a mere "material witness." Though to his credit Mr. Mukasey did insist that Padilla have at least limited access to a lawyer, this meant that the Bush administration could hole him up in South Carolina Brig indefinitely, despite being an American citizen arrested on U.S. soil. Two U.S. Circuit Appeals Courts ultimately disagreed with the ruling, and the Judiciary Committee should probe his reasoning for doing so in light of his recent nomination.

Judge Mukasey also gave wider latitude to law enforcement in allowing them to use the material witness statue in terrorist investigations. Normally, material witnesses are detained for a certain period of time in order to secure grand jury testimony or in criminal proceedings. If they don't have any valuable information or are not charged with
crime, they are set free.

But soon after 9/11, Judge Mukasey and others, upheld the statue in terrorist probes, which frequently led to many South Asian, Arab, and Muslim men being detained indefinitely without charge and limited access to an attorney. American citizens and immigrants alike were rounded up under this statue in a nation-wide dragnet and placed in rushed deportation proceedings. Others suffered physical and verbal abuse during their imprisonment, violating their right to due process, and to equal protection under the law.

Judge Mukasey, however, thought these criticisms were grossly exaggerated. In fact in a May 10, 2004 Wall Street Journal op-ed entitled "The Spirit of Liberty," he states that after the September 11th attacks,

…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…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?

But several news reports and studies done after the attacks did confirm many people were rounded up on the basis of their religion and ethnicity. In fact, according to the Justice Department's own Office of Inspector General report law enforcement authorities had detained, at least for questioning, more than 1,200 citizens and immigrants nationwide in the wake of the 9/11attacks with the majority being Arab, South Asian, and Muslim men.

Human Rights Watch also claimed law enforcement selectively enforced immigration laws charges as a means of detaining more than 700 "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." These numbers represent more than just the missteps of a few fallible human beings.

Curiously enough, Judge Michael Mukasey also recently opined in the Wall Street Journal that perhaps the federal courts are somehow ill-suited to trying accused terrorists and so-called enemy combatants. This is a rather odd assertion considering that Mukasey did not have an issue with the federal court system when he admirably presided over the trial of "the blind sheik" in 1995. One would think he would have voiced his objections to trying accused terrorists back then. Of course, many of the lawyers making these arguments now are in the Bush administration and are happy with stripping federal courts of their power to hear cases from those seeking to challenge their detention.

If the Senate is serious about reversing the legacy of Ashcroft’s and Gonzales’ tenure at the Justice Department, Judge Mukasey’s record and judicial views should be thoroughly scrutinized. But Judge Mukasey also needs to honestly account for the troubling aspects of his record to understand his commitment to enforcing the law fairly and impartially. It will be how he accounts for his record and his views, not just mere nomination, that will demonstrate whether or not an Attorney General Michael Mukasey is in fact a step in the right direction.

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Posted at 1:33 PM, Sep 19, 2007 in Civil Justice
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