So what is Mukasey like? According to Bush, he shares Bush's views on the importance of executive power. This is bad. But there's a bright side - though Mukasey, as a federal judge, ruled that Bush could hold "enemy combatant" Jose Padilla indefinitely without charges, Padilla still had a right to an attorney. What's more, New York Senator Charles Schumer, a relatively liberal fellow, seems to be cool with his nomination. He might not be all bad.
You learn a lot about someone from their writings. This is Mukasey's most recent public writing - a diatribe about the inadequacies of our judicial system in the wake of the Jose Padilla verdict. In it, Mukasey seems to think that the current legal system is not well suited to deal with terrorism. He makes some valid points - the current disclosure system in the criminal court system often aids terrorist intelligence, for example - but to me, he doesn't convincingly make the case that terror suspects shouldn't be tried like other criminals.
Let's go into depth on this portion of his column and try to divine what he'd be like as an AG:
And third, 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.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
First, we see the idea that terror suspects are intent on carrying out cosmic goals by cataclysmic means, and that this needs to change the nature of the legal system. This perpetuates the myth of the "war on terror" and legitimates overuse of executive power to "incapacitate" those who break our laws. It's true that Islamic terrorists pose a serious threat, but the same might have been said about Timothy McVeigh or Eric Harris and Dylan Klebold (all terrorists with "cosmic goals" who used "cataclysmic means" - the latter two were suicide terrorists who likely would have been tried via the courts had they survived). The bright line that Mukasey draws between "national security" cases and regular criminal cases is bothersome to me - he seems to draw said line well before it needs to be drawn. A clever Senator might ask him during the confirmation hearings what the difference between McVeigh and Padilla might be, and why they should be treated differently. Mukasey makes the case earlier in the column for why terrorists should be treated differently from regular criminals, but not at all convincingly in my opinion. I suppose I don't share with him the same concern that the possibility that terrorists will learn anything from our judicial proceedings warrants the scrapping of the system altogether for terror suspects. Seems like he's creating a straw man here - it's the classic "create a fear so I can alleviate it" ploy.
Second, we see the most disturbing part of Mukasey's column, the idea that foreigners' access to the legal system and an attorney is "a bold joke." It is perhaps the case that a foreigner intent on our nation's destruction should not be entitled to the same legal system as a regular citizen or a common criminal - this is a matter worthy of debate. But this idea is not a joke, and it should not be treated as such. This comment seems to betray a sense of arrogance about executive power - which was one of the biggest complaints about Gonzales. One wonders whether Mukasey would be able to work with a Congress skeptical of executive power-grabs, or whether he would dismiss Congress' criticisms as "jokes."
Third, I have to take offense at the gratuitous ACLU-bashing that conservatives like to engage in these days. The ACLU doesn't "purport" to protect civil liberties - it does protect civil liberties. It is a valuable organization that seeks only to preserve the ideals that make the U.S.A the great nation that it is. Its concerns ought to be taken seriously, and not dismissed with ridiculous claims that blame it for excessive use of force by the military and for extraordinary rendition/torture. Yet again, I see a typically neoconservative disdain for critics that ought to set off alarms with any Senator that gets the opportunity to question him.
Finally, Mukasey at least seems to realize that terror investigations and prosecutions ought to be circumscribed - that we ought to make sure that, in non-terror-related cases, the judicial system should work as before. A Senator would be well-advised to ask Mukasey his opinion on the use of anti-terror legislation to pursue non-terrorist criminals. This bit seems to suggest that he might be sympathetic to complaints about such executive overreaches that have been circulating recently. This is good, and might even lead to a desire to set up judicial oversight for Bush's intelligence-gathering plan, which would be excellent.
And I'm not entirely certain what to make of this statement:
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. [Emphasis added -J]
"While we still have the leisure?" What the hell does that mean? Looks like if Mukasey gets nominated, we have a lot more fun fearmongering to look forward to. Just what we need; another politician who will play the 9/11 card to accelerate or eliminate a necessary debate.
All in all, I'm not as sanguine on Mukasey as Schumer and other high-powered Democrats seem to be. Sure, we could do - and have done - a lot worse than Mukasey, but we could also do a lot better. I'm somewhat heartened by the idea that Mukasey would like to see Congress set the terms for a judicial system that deals with terror suspects, but I worry that Mukasey seems to simply be seeking Congressional approval for the executive power-grabs that Bush has been making as of late. Mukasey might not be as bad as Gonzales, but we ought to tread carefully and make sure he answers pointed and incisive questions from the Senate. Mukasey seems to intimate that intelligence gathering should be a court issue, and this is a marked improvement over Gonzales. But Mukasey's seeming disdain for those who disagree with him, as well as his penchant for fearmongering, ought to be a warning that Schumer and company might not be getting the cooperative AG that they bargained for.