The AG ahead

September 24th, 2007

The Dem’s are taking their time getting to the Mukasey vetting — Leahy wants the papers he requested of the W-House first, but Reid has said he won’t hold up the process indefinitely. I’m afraid we have another Sam Alito here, or perhaps a John Roberts; not in terms of religious credo — but this candidate for Attorney General seems to worship at the alter of “unitary powers.” The New York Times editorial board calls it “too deferential to government.” Mukasey may not serve up the Kool Aid, but what he wants us to swallow is pretty acidic.

He is intelligent … and that’s damned refreshing … but he’s also a hard case, conservative to the core and on board with Rudy Giulliani in a relationship that goes back to the 70’s; since Rudy is shaping up to be the next Bush, that should give us additional pause. At first hesitant, the Right seems to have signed on for this gent, deciding he meets their criteria … which should also make us extremely wary. The Dem’s may or may not deal with these dangers — in light of their recent spit in the face of the base [MoveOn, non-impeachment, pro-war funding, yadda] they will likely take this Red bone thrown to them, grateful it isn’t Ted Olsen or some other miscreant.

We feed on scraps, in this party. Is my frustration showing? Yeah … and it’s informed. I’m sure Diane Feinstein will vote for him … he’s so “reasonable,” doncha know. Unless we get some further bits of dish that will turn the Corporate Wing of the Dem party against him, Mukasey looks like a shoo in.

For me, it’s pretty simple — anybody who is derisive of “Patriot Act hysteria” and chides librarians on their protection of readers rights ain’t my friend. It’s only the Constitution at stake, after all — you’d think the Dems would at least understand that.

Jude

Mukasey: Grilling Bush’s A.G. Pick
Michael Isikoff, Newsweek
Oct. 1, 2007

After President Bush settled on Michael Mukasey to be his next attorney general, White House officials were privately worried about how conservatives would react given the ex-judge’s lack of “movement” credentials. But in a series of private meetings arranged by chief of staff Josh Bolten prior to the nomination, Mukasey, 66, reassured top hard-liners, such as Federalist Society executive Leonard Leo and former A.G. Edwin Meese. According to three sources, who asked not to be named discussing the private meetings, Mukasey said that he saw “significant problems” with shutting down Guantánamo Bay and that he understood the need for the CIA to use some “enhanced” interrogation techniques against Qaeda suspects. Mukasey also signaled reluctance with naming a special prosecutor to investigate Bush-administration misconduct, according to one participant. “Gosh, I’m a little worried that the Democrats might have problems with him,” said one well-connected conservative after being briefed on Mukasey’s responses. But key Democrats, such as Senate Judiciary chair Patrick Leahy, view Mukasey as a more substantive, independent figure than Alberto Gonzales and have signaled that he will be quickly confirmed. Meanwhile, the probes into the Gonzales era will continue. The departed A.G. is now looking for a private lawyer to represent him, according to two legal sources who asked not to be identified because of the matter’s sensitivity.

Mukasey the Maverick?
Steve Benen, Talking Points Memo
09.23.07

When the president nominated former New York district judge Michael Mukasey to replace Alberto Gonzales as Attorney General, conservatives responded with one of three reactions: there were the rank-and-file Republicans who said, “Michael who?”; there were the Bill Kristols of the world who followed the White House’s lead; and there were the activists who wanted Ted Olson and found Mukasey to be a poor substitute.

Bob Novak, summarizing the feelings of many conservative leaders, blasted Mukasey as “totally unqualified,” preferring Olson because he “knows where the bodies are buried.”

The New York Times’ Adam Liptak had a good feature piece today on Mukasey and his 18 years on the federal bench, which probably won’t help smooth over conservative discontent. Liptak describes the AG nominee as “fiercely intelligent, prickly, impatient, practical and suspicious of abstractions” — hardly qualities found in “loyal Bushies.”

He was quick to chastise and impose sanctions on lawyers who tested his patience or, much worse, lied to him. He did not hesitate to rule against the powerful, including President Bush’s uncle, or people with sympathetic cases but no claim to legal relief. His decisions often crackled with an acerbic and sometimes aphoristic wit.

He was tough at sentencing but not uniformly so. He showed leniency to people convicted of immigration offenses but little mercy to white collar criminals.

In one notable example, Justice Department officials asked Mukasey to allow them to force a mentally troubled defendant to take psychotropic drugs to render her competent to stand trial. Mukasey not only rejected the request, but seemed offended by it.

“It is not inappropriate to recall in plain terms,” he wrote, “what the government seeks to do here, which necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs.”

“There was a time when what might be viewed as an even lesser invasion of a defendant’s person — pumping his stomach to retrieve evidence — was said to ’shock the conscience’ and invite comparison with ‘the rack and the screw,’ ” he added, quoting from a 1952 Supreme Court decision.

Where have you gone, Alberto Gonzales, a conservative movement turns its lonely eyes to you.

Considering Mr. Mukasey
New York Times Editorial
September 18, 2007

Michael Mukasey, President Bush’s nominee to be attorney general, is being promoted as a “consensus choice,” which is meant to signal the Senate that it should be grateful and confirm him without delay. Mr. Mukasey is clearly better than some of the “loyal Bushies” whose names had been floated, but that should not decide the matter. The Senate needs to question him closely about troubling aspects of his record, and make sure he is willing to take the tough steps necessary to repair a very damaged Justice Department.

Mr. Mukasey has attributes that could make him a good attorney general. He has been a lawyer and federal district court judge in New York, where he enjoys a good reputation. Although he is not divorced from politics (he is on an advisory committee to Rudolph Giuliani’s campaign), it is unlikely that he would run the Justice Department as an adjunct of the White House, or a booster of the Republican Party, as Alberto Gonzales did.

Aspects of his record, however, are troubling. As a judge, he was too deferential to the government. In the case of Jose Padilla, who was accused of participating in a dirty bomb plot, he ruled that the president may detain American citizens indefinitely as “enemy combatants.” His dangerously narrow reading of the Constitution was rightly reversed by a federal appeals court.

In a 2004 Wall Street Journal op-ed article, Mr. Mukasey denounced the “hysteria” of Patriot Act critics, and lashed out at the American Library Association for trying to protect patrons’ privacy. He also made the dubious claim that based on the structure of the Constitution, the government should “receive from its citizens the benefit of the doubt.” And writing in The Journal this year, he promoted the truly awful idea of a separate national security court that would try suspected terrorists.

The Senate should question Mr. Mukasey about all of this, and about the government’s domestic spying program, which has operated illegally, and about which Mr. Gonzales has been unable to tell the truth.

Mr. Mukasey also needs to be asked, in detail, how he intends to fix the Justice Department. There is strong evidence that federal prosecutors brought cases to help Republicans win elections. Mr. Mukasey needs to promise that he will get to the bottom of these matters, and that he will make available the critical documents and witnesses that the administration has withheld.

Mr. Mukasey also needs to explain how he plans to remove the partisan political operatives put in nonpartisan positions under Mr. Gonzales and, more broadly, how he plans to restore the department’s integrity.

Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.

Senator Patrick Leahy, chairman of the Judiciary Committee, said yesterday that the Senate would be reluctant to confirm Mr. Mukasey until the White House handed over key documents on issues like domestic surveillance. It should be. Senators also need to ask for more information directly from Mr. Mukasey. He may be worthy of confirmation, but the nation can only know for sure after careful, probing hearings.

Mukasey the writer
The New York Times via The Carnegie Legal Reporting Program
Sun, September 23, 2007

Adam Liptak parses Michael Mukasey’s written opinions and finds, among other things, an Orwellian streak. Not in the Big Brother sense, but in the writerly way he expresses himself. Mukasey, it turns out, is a former UPI writer, fan of George Orwell’s use of the language, and enemy of abstractions and obfuscations. Mukasey explained his method many years ago — and we can only hope he hasn’t changed:

“He [Orwell] is a particular idol of mine for his clear writing and complete disdain for cant,” Judge Mukasey told a reporter for The Financial Times in 1989, not long after becoming a judge. “I try to recognize when some spongy abstraction is trying to cover up an excuse for thought or analysis.”

How refreshing. I admit, I’m a sucker for this sort of thing. You can say the most outrageous things, and if you’re blunt and unlike most government/bureaucratic mushmouths, I’ll give you more credit than you may deserve (*cough*McCain*cough). Let’s hope Mukasey’s handlers don’t beat the plainspokenness out of him. No matter if they try, they’ll never remake him as Gonzales II. And we can all be grateful for that.

Why Cheney Likes Mukasey for A.G.
Robert Parry, Consortium News
September 19, 2007

In praising George W. Bush’s new choice for Attorney General, Vice President Dick Cheney identified one freedom in particular that retired Judge Michael Mukasey would protect: “the freedom from fear of terrorist attacks.”

The comment spoke volumes about the Bush administration’s priorities, fitting with the President’s oft-repeated claim that the government has no more important duty than to protect the American people.

That this claim goes unchallenged – despite the fact that the oath administered to federal officials demands that they defend the Constitution and says nothing about public safety – has been a leading indicator of how Bush and Cheney have exploited the self-centeredness of many Americans to amass unprecedented executive power.

Since the 9/11 attacks, Bush and Cheney have taken the imperial presidency to new heights by presenting themselves as the tough guys who will protect the traumatized American people from the world’s bad guys, particularly scary Muslims. From the start, Mukasey has been an ally in that mission.

As a federal judge in New York, Mukasey endorsed indefinite incarceration of hundreds of Muslims on phony material witness warrants after the 9/11 attacks. He also signed off on Bush imprisoning an American citizen – and Muslim convert – Jose Padilla simply on a presidential say-so that Padilla was an “unlawful enemy combatant.”

Ironically, the post-9/11 round-up of Arab cab drivers, pizza delivery men and students came as the Bush administration was granting special permission for rich Saudis, including members of Osama bin Laden’s family, to flee the United States after only cursory FBI questioning.

The arresting of the “usual suspects” – while the well-connected who actually might know something were whisked away – was perhaps the first signal of how Bush’s “war on terror” would proceed, draconian actions that create the appearance of a tough crackdown when the reality is entirely different,

Still, the illusion of protecting Americans has been at the center of Bush’s presidency, with many of Bush’s followers almost eager to jettison those “unalienable rights” that the Founders enshrined in the Constitution in exchange for Bush’s hollow guarantees of a little more safety to ease the mind while driving to the shopping mall.

For some Americans, sacrificing “civil liberties” is treated as a small price to pay if that improves chances of preventing another 9/11. After all, as the slogan goes, “freedom isn’t free” even if the price is freedom itself.

Exploiting Fear

Amid the exploitation of their fears, many Americans have been led to believe that surrendering their constitutional rights is either the “patriotic” thing to do or a simple case of common sense.

As right-wing Sen. Pat Roberts, R-Kansas, once put it, “You have no civil liberties if you are dead.” So, personal safety trumps the ideal of freedom.

But the concept of placing personal safety over fundamental liberties flies in the face of American traditions dating back to the Revolutionary War when Patrick Henry declared, “Give me liberty or give me death.”

By contrast, Roberts’s statement flipped the concept, rejecting the notion that Americans must accept some level of personal risk if they are determined to protect the Constitution and its core principle that some rights are inalienable, even for Muslims whom President Bush has designated “bad guys.”

In Cheney’s Sept.17 statement on Mukasey’s nomination, the Vice President said the retired federal judge would “ensure that the rights and freedoms of the American people are protected, and that includes the freedom from the fear of terrorist attacks.”

By singling out “freedom from the fear of terrorist attacks” as the only identified “right” in the statement, Cheney indicated where he and the President put their priorities – on protecting Americans from the remote personal threat that they might be harmed in a terrorist attack, forget the niceties of civil liberties and the rule of law.

As a federal judge, Mukasey demonstrated that he was on board.

Describing his selection process, the New York Times wrote that “a review of his record shows that he would defend the administration on the issue that matters most to the President, national security. [Mukasey] has repeatedly spoken out to support the administration’s claim to broad powers in pursuing terrorist threats, especially in conducting electronic surveillance of terrorism suspects and in imprisoning them before trial.” [NYT, Sept. 18, 2007]

In other words, Mukasey may not be the favorite of “movement conservatives” who want an Attorney General who will push their “social issues,” but the retired judge with close ties to former New York Mayor Rudolph Giuliani will give Bush what he wants most: a political ally to defend his vision of a President with nearly unlimited powers.

Post-9/11 Cases Fuel Criticism for Nominee
PHILIP SHENON, NYT
September 24, 2007

WASHINGTON, Sept. 23 — The 21-year-old Jordanian immigrant was in shackles when he was brought into the courtroom of Judge Michael B. Mukasey in Federal District Court in Manhattan.

It was Oct. 2, 2001, and the prisoner, Osama Awadallah, then a college student in San Diego with no criminal record, was one of dozens of Arab men detained around the country in the days after the Sept. 11 attacks as potential witnesses in the terrorism investigation.

Before the hearing, Mr. Awadallah told his lawyer that he had been beaten in the federal detention center in Manhattan, producing bruises that were hidden beneath his orange prison jumpsuit. But when his lawyer told this to Judge Mukasey, the judge seemed little concerned.

“As far as the claim that he was beaten, I will tell you that he looks fine to me,” said Judge Mukasey, who was nominated by President Bush last week to be his third attorney general and is now facing Senate confirmation hearings. “You want to have him examined, you can make an application. If you want to file a lawsuit, you can file a civil lawsuit.”

Even though Mr. Awadallah was not charged at the time with any crime and had friends and family in San Diego who would vouch that he had no terrorist ties, Judge Mukasey ordered that he be held indefinitely, a ruling he made in the cases of several other so-called material witnesses in the Sept. 11 investigations. A prison medical examination later identified the bruises across his body.

Judge Mukasey’s comments at the 2001 hearing were revealed in a once-secret 16-page transcript provided to The New York Times by a lawyer for Mr. Awadallah.

Although Mr. Mukasey is otherwise widely admired by prosecutors and defense lawyers alike in New York, his handling of the cases of Mr. Awadallah and other material witnesses taken into custody in terrorism investigations after Sept. 11 produced some rare, sharp criticism of his performance on the bench and raised concern among civil liberties groups. Senate Democrats have suggested they will focus on the issue when Mr. Mukasey is questioned at his confirmation hearings.

The White House has declined to answer detailed questions about Mr. Mukasey’s record pending the Senate hearings. But the retired judge appeared to defend himself in an opinion article that was published in The Wall Street Journal last month in which he rebuffed criticism of the treatment of material witnesses after Sept. 11, saying their due process was protected.

“Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing and was permitted to challenge the basis for his detention, just as a criminal defendant would be,” he wrote. The article made no reference to Mr. Awadallah’s detention.

Critics say a 1984 material witness law was abused by the Justice Department, and by Judge Mukasey and his judicial colleagues, to hold terrorist suspects indefinitely after Sept. 11 without having to accuse them of a crime and afford them the rights of a criminal defendant.

The roundup of men like Mr. Awadallah under the material witness law in September and October 2001 was an early effort by the Bush administration to rewrite or reinterpret laws on the detention, interrogation and surveillance of people suspected of terrorist ties after the Sept. 11 attacks — a campaign that is now the subject of furious debate between the White House and the Democratic leaders of Congress.

Critics say the material witness cases before Judge Mukasey after Sept. 11 offer insight into his performance and temperament at a time of duress. The cases came before him at a time when New York was still in turmoil, with the courthouse in Lower Manhattan, only blocks from the rubble of the World Trade Center, partly shut down and operating under extraordinarily tight security.

Democrats on the Senate Judiciary Committee have said they will try to review cases like Mr. Awadallah’s in detail before Mr. Mukasey, who retired last year after 18 years on the court, appears before them.

Senator Charles E. Schumer, the New York Democrat who encouraged Mr. Bush to consider Mr. Mukasey for the Justice Department job, said that he was aware of the concerns over the nominee’s record on material witnesses cases, and that they would be studied by the committee. “There will certainly be those questions for him,” Mr. Schumer said.

Congressional aides said that while the committee’s chairman, Senator Patrick J. Leahy, Democrat of Vermont, thought it was too early to discuss specific questions that would be put to Mr. Mukasey, the senator has long been concerned about the possible abuse of the federal material witness statute in the indefinite detention of terrorist suspects.

The records of most material witnesses cases are sealed, so there is no way to determine whether Judge Mukasey’s tone in the October 2001 hearing for Mr. Awadallah reflects his handling of other witnesses picked up after Sept. 11.

Some of Mr. Awadallah’s records became public because he, unlike most of other material witnesses, was eventually charged with a crime. His odyssey in the federal court system ended last November, more than five years after his initial detention, when he was acquitted on charges that he lied to a grand jury when he denied that he knew one of the Sept. 11 hijackers.

After his acquittal, Mr. Awadallah returned home to California. As he awaited trial last year, he continued his studies and graduated with honors last year from San Diego State University.

Prominent defense lawyers and legal scholars have said that Judge Mukasey and other federal judges were too quick to accept the administration’s reasoning after Sept. 11 that young Arab men should be held as “material witnesses” in terrorism investigations.

It was a ruse, the lawyers say, for the government to detain them, often for months at a time, without any need to cite evidence of possible wrongdoing.

Randy Hamud, the San Diego lawyer who represented Mr. Awadallah in the courtroom on that first hearing in October 2001, said he was startled by how “injudicious and malicious” Judge Mukasey had been toward his client.

He said Judge Mukasey seemed not to care that Mr. Awadallah and other witnesses had been whisked away to New York from San Diego without any notice to the lawyers and were denied the right to contact lawyers for hours after their arrival in New York.

“I wasn’t aware that they were in New York until approximately 8:30 yesterday morning,” Mr. Hamud told the judge at the Oct. 2 hearing, according to the transcript. Mr. Hamud said he had been required to fly overnight to New York from California to attend the early morning hearing.

“You are now aware of it,” the judge replied without elaboration.

When Mr. Hamud asked Judge Mukasey why he was not admonishing prosecutors for blocking his contact with Mr. Awadallah, the judge replied: “Your question is ridiculous. The government isn’t interfering with the attorney-client privilege.”

The lawyer continued, “It is, Your Honor.”

The judge replied, “Oh, please.”

Mr. Hamud said he was also taken aback at the hearing when Judge Mukasey sided with prosecutors and refused to allow a prominent Arab-American criminal defense lawyer, Abdeen M. Jabara, to help defend Mr. Awadallah.

Prosecutors argued that Mr. Jabara had a conflict of interest because he defended Sheik Omar Abdel Rahman, the blind Egyptian cleric convicted in 1995 in a terrorist plot to blow up New York City landmarks. Judge Mukasey was the judge in that trial.

The transcript shows that Mr. Hamud, who had no background in criminal law, told the judge that he needed the help of an experienced New York criminal defense lawyer like Mr. Jabara.

“I am obviously a practitioner from Southern California,” he said. “I am not familiar with the nuances of the Southern District.” It was a reference to the Southern District of New York, the judicial region that includes the Manhattan courthouse.

Judge Mukasey replied, “Which nuances are you not familiar with?”

Mr. Hamud said, “Mr. Jabara has not had a chance to let me know those yet.”

Judge Mukasey replied: “I got news for you. Mr. Jabara is not terribly familiar with the nuances either.” He said that Mr. Jabara “was before me in a case that arguably has some relationship to this.” He did not detail what that relationship might be.

In the years since the Sept. 11 attacks, federal law enforcement agencies have found no clear relationship between Sheik Abdel Rahman’s followers and the 9/11 plot. Mr. Jabara did not return phone calls to his law office.

The Justice Department’s widespread use of the 1984 federal material-witness law to detain dozens of young Arab men after the Sept. 11 attacks has been widely criticized by legal scholars as an abuse of the law, which was intended to prevent witnesses in criminal cases from fleeing before they could testify.

In a report in 2005, Amnesty International and Human Rights Watch said they had found evidence of at least 70 cases in which men living in the United States, all Muslims except one, had been “thrust into a Kafkaesque world of indefinite detention without charges” because they had been labeled material witnesses.

Jesse Berman, a New York lawyer who joined Mr. Awadallah’s defense team after the Oct. 2 hearing and provided The Times with the transcript, said that there was no excuse for Judge Mukasey’s performance at the hearing, even in the chaotic weeks after 9/11, when there was fear of another terrorist attack.

“It was a hard time, but it was a hard time for the material witnesses, too,” he said. “Mukasey was not objective. He’s an advocate of the prosecutorial side of things.” But Judge Mukasey’s handling of the cases is likely to have support among some in the Bush administration. Viet D. Dinh, a former assistant attorney general in the Bush Justice Department and now a law professor at Georgetown University, said Judge Mukasey was following a “fairly straightforward application of the material witness statute” in the post-9/11 cases.

What was different, Professor Dinh said, was how many more of the cases there were after the terror attacks.

“It would be like criticizing a judge for applying the murder laws because too many prosecutors have been bringing murder cases,” he said. “It’s certainly not a fair criticism.”

Benjamin Weiser contributed reporting.

No rush for Mukasey confirmation hearing, say Dems
Elana Schor, The Hill
September 17, 2007

President Bush’s choice of Michael Mukasey as the next attorney general won early praise Monday, but Democrats appeared ready to take their time on a confirmation hearing until the administration plays ball on subpoenaed documents that it continues to withhold.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said the White House’s willingness to comply with outstanding subpoenas on its program of eavesdropping on suspected terrorists, as well as the recent U.S. attorney firings, would have a direct impact on the timeframe for a Mukasey confirmation.

“Our focus now will be on securing the relevant information we need so we can proceed to schedule fair and thorough hearings,” Leahy said in a statement.

Sen. Arlen Specter (Pa.), ranking Republican on the Judiciary panel, expressed hope that “we don’t get bogged down into preconditions on the nomination with respect to certain pending requests.” Installing new senior leadership at the Justice Department has become even more crucial, Specter added, in light of multiple vacancies among senior staff and shaken morale at the agency.

Sen. Charles Schumer (N.Y.), a senior leadership and Judiciary member, suggested that White House counsel Fred Fielding meet with Democrats in the coming days to discuss subpoenaed documents with an eye to moving Mukasey quickly through the process.

“There are concerns about those documents,” Schumer told reporters. “We’re not dropping those concerns but hopefully there can be a sit-down where an agreement is reached, maybe as part and parcel of a Mukasey confirmation.”

Schumer and other Democrats had floated Mukasey as a potential nominee to succeed former Attorney General Alberto Gonzales, touting the former federal judge’s balanced record on terrorism cases.

Senate Majority Leader Harry Reid (D-Nev.) sounded a note of relief that the White House opted against choosing Ted Olson, the former solicitor general whose political past as a critic of the Clinton administration raised alarms with Democrats.

But Reid also said he would back Leahy’s decision on a timeframe for considering Mukasey, presaging a possible proxy fight wherein Democrats would seek testimony and documents before proceeding to a vote.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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Entry Filed under: Political Waves

The AG ahead

September 24th, 2007

The Dem’s are taking their time getting to the Mukasey vetting — Leahy wants the papers he requested of the W-House first, but Reid has said he won’t hold up the process indefinitely. I’m afraid we have another Sam Alito here, or perhaps a John Roberts; not in terms of religious credo — but this candidate for Attorney General seems to worship at the alter of “unitary powers.” The New York Times editorial board calls it “too deferential to government.” Mukasey may not serve up the Kool Aid, but what he wants us to swallow is pretty acidic.

He is intelligent … and that’s damned refreshing … but he’s also a hard case, conservative to the core and on board with Rudy Giulliani in a relationship that goes back to the 70’s; since Rudy is shaping up to be the next Bush, that should give us additional pause. At first hesitant, the Right seems to have signed on for this gent, deciding he meets their criteria … which should also make us extremely wary. The Dem’s may or may not deal with these dangers — in light of their recent spit in the face of the base [MoveOn, non-impeachment, pro-war funding, yadda] they will likely take this Red bone thrown to them, grateful it isn’t Ted Olsen or some other miscreant.

We feed on scraps, in this party. Is my frustration showing? Yeah … and it’s informed. I’m sure Diane Feinstein will vote for him … he’s so “reasonable,” doncha know. Unless we get some further bits of dish that will turn the Corporate Wing of the Dem party against him, Mukasey looks like a shoo in.

For me, it’s pretty simple — anybody who is derisive of “Patriot Act hysteria” and chides librarians on their protection of readers rights ain’t my friend. It’s only the Constitution at stake, after all — you’d think the Dems would at least understand that.

Jude

Mukasey: Grilling Bush’s A.G. Pick
Michael Isikoff, Newsweek
Oct. 1, 2007

After President Bush settled on Michael Mukasey to be his next attorney general, White House officials were privately worried about how conservatives would react given the ex-judge’s lack of “movement” credentials. But in a series of private meetings arranged by chief of staff Josh Bolten prior to the nomination, Mukasey, 66, reassured top hard-liners, such as Federalist Society executive Leonard Leo and former A.G. Edwin Meese. According to three sources, who asked not to be named discussing the private meetings, Mukasey said that he saw “significant problems” with shutting down Guantánamo Bay and that he understood the need for the CIA to use some “enhanced” interrogation techniques against Qaeda suspects. Mukasey also signaled reluctance with naming a special prosecutor to investigate Bush-administration misconduct, according to one participant. “Gosh, I’m a little worried that the Democrats might have problems with him,” said one well-connected conservative after being briefed on Mukasey’s responses. But key Democrats, such as Senate Judiciary chair Patrick Leahy, view Mukasey as a more substantive, independent figure than Alberto Gonzales and have signaled that he will be quickly confirmed. Meanwhile, the probes into the Gonzales era will continue. The departed A.G. is now looking for a private lawyer to represent him, according to two legal sources who asked not to be identified because of the matter’s sensitivity.

Mukasey the Maverick?
Steve Benen, Talking Points Memo
09.23.07

When the president nominated former New York district judge Michael Mukasey to replace Alberto Gonzales as Attorney General, conservatives responded with one of three reactions: there were the rank-and-file Republicans who said, “Michael who?”; there were the Bill Kristols of the world who followed the White House’s lead; and there were the activists who wanted Ted Olson and found Mukasey to be a poor substitute.

Bob Novak, summarizing the feelings of many conservative leaders, blasted Mukasey as “totally unqualified,” preferring Olson because he “knows where the bodies are buried.”

The New York Times’ Adam Liptak had a good feature piece today on Mukasey and his 18 years on the federal bench, which probably won’t help smooth over conservative discontent. Liptak describes the AG nominee as “fiercely intelligent, prickly, impatient, practical and suspicious of abstractions” — hardly qualities found in “loyal Bushies.”

He was quick to chastise and impose sanctions on lawyers who tested his patience or, much worse, lied to him. He did not hesitate to rule against the powerful, including President Bush’s uncle, or people with sympathetic cases but no claim to legal relief. His decisions often crackled with an acerbic and sometimes aphoristic wit.

He was tough at sentencing but not uniformly so. He showed leniency to people convicted of immigration offenses but little mercy to white collar criminals.

In one notable example, Justice Department officials asked Mukasey to allow them to force a mentally troubled defendant to take psychotropic drugs to render her competent to stand trial. Mukasey not only rejected the request, but seemed offended by it.

“It is not inappropriate to recall in plain terms,” he wrote, “what the government seeks to do here, which necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs.”

“There was a time when what might be viewed as an even lesser invasion of a defendant’s person — pumping his stomach to retrieve evidence — was said to ’shock the conscience’ and invite comparison with ‘the rack and the screw,’ ” he added, quoting from a 1952 Supreme Court decision.

Where have you gone, Alberto Gonzales, a conservative movement turns its lonely eyes to you.

Considering Mr. Mukasey
New York Times Editorial
September 18, 2007

Michael Mukasey, President Bush’s nominee to be attorney general, is being promoted as a “consensus choice,” which is meant to signal the Senate that it should be grateful and confirm him without delay. Mr. Mukasey is clearly better than some of the “loyal Bushies” whose names had been floated, but that should not decide the matter. The Senate needs to question him closely about troubling aspects of his record, and make sure he is willing to take the tough steps necessary to repair a very damaged Justice Department.

Mr. Mukasey has attributes that could make him a good attorney general. He has been a lawyer and federal district court judge in New York, where he enjoys a good reputation. Although he is not divorced from politics (he is on an advisory committee to Rudolph Giuliani’s campaign), it is unlikely that he would run the Justice Department as an adjunct of the White House, or a booster of the Republican Party, as Alberto Gonzales did.

Aspects of his record, however, are troubling. As a judge, he was too deferential to the government. In the case of Jose Padilla, who was accused of participating in a dirty bomb plot, he ruled that the president may detain American citizens indefinitely as “enemy combatants.” His dangerously narrow reading of the Constitution was rightly reversed by a federal appeals court.

In a 2004 Wall Street Journal op-ed article, Mr. Mukasey denounced the “hysteria” of Patriot Act critics, and lashed out at the American Library Association for trying to protect patrons’ privacy. He also made the dubious claim that based on the structure of the Constitution, the government should “receive from its citizens the benefit of the doubt.” And writing in The Journal this year, he promoted the truly awful idea of a separate national security court that would try suspected terrorists.

The Senate should question Mr. Mukasey about all of this, and about the government’s domestic spying program, which has operated illegally, and about which Mr. Gonzales has been unable to tell the truth.

Mr. Mukasey also needs to be asked, in detail, how he intends to fix the Justice Department. There is strong evidence that federal prosecutors brought cases to help Republicans win elections. Mr. Mukasey needs to promise that he will get to the bottom of these matters, and that he will make available the critical documents and witnesses that the administration has withheld.

Mr. Mukasey also needs to explain how he plans to remove the partisan political operatives put in nonpartisan positions under Mr. Gonzales and, more broadly, how he plans to restore the department’s integrity.

Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.

Senator Patrick Leahy, chairman of the Judiciary Committee, said yesterday that the Senate would be reluctant to confirm Mr. Mukasey until the White House handed over key documents on issues like domestic surveillance. It should be. Senators also need to ask for more information directly from Mr. Mukasey. He may be worthy of confirmation, but the nation can only know for sure after careful, probing hearings.

Mukasey the writer
The New York Times via The Carnegie Legal Reporting Program
Sun, September 23, 2007

Adam Liptak parses Michael Mukasey’s written opinions and finds, among other things, an Orwellian streak. Not in the Big Brother sense, but in the writerly way he expresses himself. Mukasey, it turns out, is a former UPI writer, fan of George Orwell’s use of the language, and enemy of abstractions and obfuscations. Mukasey explained his method many years ago — and we can only hope he hasn’t changed:

“He [Orwell] is a particular idol of mine for his clear writing and complete disdain for cant,” Judge Mukasey told a reporter for The Financial Times in 1989, not long after becoming a judge. “I try to recognize when some spongy abstraction is trying to cover up an excuse for thought or analysis.”

How refreshing. I admit, I’m a sucker for this sort of thing. You can say the most outrageous things, and if you’re blunt and unlike most government/bureaucratic mushmouths, I’ll give you more credit than you may deserve (*cough*McCain*cough). Let’s hope Mukasey’s handlers don’t beat the plainspokenness out of him. No matter if they try, they’ll never remake him as Gonzales II. And we can all be grateful for that.

Why Cheney Likes Mukasey for A.G.
Robert Parry, Consortium News
September 19, 2007

In praising George W. Bush’s new choice for Attorney General, Vice President Dick Cheney identified one freedom in particular that retired Judge Michael Mukasey would protect: “the freedom from fear of terrorist attacks.”

The comment spoke volumes about the Bush administration’s priorities, fitting with the President’s oft-repeated claim that the government has no more important duty than to protect the American people.

That this claim goes unchallenged – despite the fact that the oath administered to federal officials demands that they defend the Constitution and says nothing about public safety – has been a leading indicator of how Bush and Cheney have exploited the self-centeredness of many Americans to amass unprecedented executive power.

Since the 9/11 attacks, Bush and Cheney have taken the imperial presidency to new heights by presenting themselves as the tough guys who will protect the traumatized American people from the world’s bad guys, particularly scary Muslims. From the start, Mukasey has been an ally in that mission.

As a federal judge in New York, Mukasey endorsed indefinite incarceration of hundreds of Muslims on phony material witness warrants after the 9/11 attacks. He also signed off on Bush imprisoning an American citizen – and Muslim convert – Jose Padilla simply on a presidential say-so that Padilla was an “unlawful enemy combatant.”

Ironically, the post-9/11 round-up of Arab cab drivers, pizza delivery men and students came as the Bush administration was granting special permission for rich Saudis, including members of Osama bin Laden’s family, to flee the United States after only cursory FBI questioning.

The arresting of the “usual suspects” – while the well-connected who actually might know something were whisked away – was perhaps the first signal of how Bush’s “war on terror” would proceed, draconian actions that create the appearance of a tough crackdown when the reality is entirely different,

Still, the illusion of protecting Americans has been at the center of Bush’s presidency, with many of Bush’s followers almost eager to jettison those “unalienable rights” that the Founders enshrined in the Constitution in exchange for Bush’s hollow guarantees of a little more safety to ease the mind while driving to the shopping mall.

For some Americans, sacrificing “civil liberties” is treated as a small price to pay if that improves chances of preventing another 9/11. After all, as the slogan goes, “freedom isn’t free” even if the price is freedom itself.

Exploiting Fear

Amid the exploitation of their fears, many Americans have been led to believe that surrendering their constitutional rights is either the “patriotic” thing to do or a simple case of common sense.

As right-wing Sen. Pat Roberts, R-Kansas, once put it, “You have no civil liberties if you are dead.” So, personal safety trumps the ideal of freedom.

But the concept of placing personal safety over fundamental liberties flies in the face of American traditions dating back to the Revolutionary War when Patrick Henry declared, “Give me liberty or give me death.”

By contrast, Roberts’s statement flipped the concept, rejecting the notion that Americans must accept some level of personal risk if they are determined to protect the Constitution and its core principle that some rights are inalienable, even for Muslims whom President Bush has designated “bad guys.”

In Cheney’s Sept.17 statement on Mukasey’s nomination, the Vice President said the retired federal judge would “ensure that the rights and freedoms of the American people are protected, and that includes the freedom from the fear of terrorist attacks.”

By singling out “freedom from the fear of terrorist attacks” as the only identified “right” in the statement, Cheney indicated where he and the President put their priorities – on protecting Americans from the remote personal threat that they might be harmed in a terrorist attack, forget the niceties of civil liberties and the rule of law.

As a federal judge, Mukasey demonstrated that he was on board.

Describing his selection process, the New York Times wrote that “a review of his record shows that he would defend the administration on the issue that matters most to the President, national security. [Mukasey] has repeatedly spoken out to support the administration’s claim to broad powers in pursuing terrorist threats, especially in conducting electronic surveillance of terrorism suspects and in imprisoning them before trial.” [NYT, Sept. 18, 2007]

In other words, Mukasey may not be the favorite of “movement conservatives” who want an Attorney General who will push their “social issues,” but the retired judge with close ties to former New York Mayor Rudolph Giuliani will give Bush what he wants most: a political ally to defend his vision of a President with nearly unlimited powers.

Post-9/11 Cases Fuel Criticism for Nominee
PHILIP SHENON, NYT
September 24, 2007

WASHINGTON, Sept. 23 — The 21-year-old Jordanian immigrant was in shackles when he was brought into the courtroom of Judge Michael B. Mukasey in Federal District Court in Manhattan.

It was Oct. 2, 2001, and the prisoner, Osama Awadallah, then a college student in San Diego with no criminal record, was one of dozens of Arab men detained around the country in the days after the Sept. 11 attacks as potential witnesses in the terrorism investigation.

Before the hearing, Mr. Awadallah told his lawyer that he had been beaten in the federal detention center in Manhattan, producing bruises that were hidden beneath his orange prison jumpsuit. But when his lawyer told this to Judge Mukasey, the judge seemed little concerned.

“As far as the claim that he was beaten, I will tell you that he looks fine to me,” said Judge Mukasey, who was nominated by President Bush last week to be his third attorney general and is now facing Senate confirmation hearings. “You want to have him examined, you can make an application. If you want to file a lawsuit, you can file a civil lawsuit.”

Even though Mr. Awadallah was not charged at the time with any crime and had friends and family in San Diego who would vouch that he had no terrorist ties, Judge Mukasey ordered that he be held indefinitely, a ruling he made in the cases of several other so-called material witnesses in the Sept. 11 investigations. A prison medical examination later identified the bruises across his body.

Judge Mukasey’s comments at the 2001 hearing were revealed in a once-secret 16-page transcript provided to The New York Times by a lawyer for Mr. Awadallah.

Although Mr. Mukasey is otherwise widely admired by prosecutors and defense lawyers alike in New York, his handling of the cases of Mr. Awadallah and other material witnesses taken into custody in terrorism investigations after Sept. 11 produced some rare, sharp criticism of his performance on the bench and raised concern among civil liberties groups. Senate Democrats have suggested they will focus on the issue when Mr. Mukasey is questioned at his confirmation hearings.

The White House has declined to answer detailed questions about Mr. Mukasey’s record pending the Senate hearings. But the retired judge appeared to defend himself in an opinion article that was published in The Wall Street Journal last month in which he rebuffed criticism of the treatment of material witnesses after Sept. 11, saying their due process was protected.

“Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing and was permitted to challenge the basis for his detention, just as a criminal defendant would be,” he wrote. The article made no reference to Mr. Awadallah’s detention.

Critics say a 1984 material witness law was abused by the Justice Department, and by Judge Mukasey and his judicial colleagues, to hold terrorist suspects indefinitely after Sept. 11 without having to accuse them of a crime and afford them the rights of a criminal defendant.

The roundup of men like Mr. Awadallah under the material witness law in September and October 2001 was an early effort by the Bush administration to rewrite or reinterpret laws on the detention, interrogation and surveillance of people suspected of terrorist ties after the Sept. 11 attacks — a campaign that is now the subject of furious debate between the White House and the Democratic leaders of Congress.

Critics say the material witness cases before Judge Mukasey after Sept. 11 offer insight into his performance and temperament at a time of duress. The cases came before him at a time when New York was still in turmoil, with the courthouse in Lower Manhattan, only blocks from the rubble of the World Trade Center, partly shut down and operating under extraordinarily tight security.

Democrats on the Senate Judiciary Committee have said they will try to review cases like Mr. Awadallah’s in detail before Mr. Mukasey, who retired last year after 18 years on the court, appears before them.

Senator Charles E. Schumer, the New York Democrat who encouraged Mr. Bush to consider Mr. Mukasey for the Justice Department job, said that he was aware of the concerns over the nominee’s record on material witnesses cases, and that they would be studied by the committee. “There will certainly be those questions for him,” Mr. Schumer said.

Congressional aid