Administration: Judging Judge Mukasey
Administration: Judging Judge Mukasey
Today, the Senate Judiciary Committee will consider Judge Michael Mukasey's nomination as the nation's next Attorney General. Several senators on the committee have already expressed hope for a successful confirmation.
|OCTOBER 17, 2007||by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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Judging Judge Mukasey
Today, the Senate Judiciary Committee will consider Judge Michael Mukasey’s nomination as the nation’s next Attorney General. Several senators on the committee have already expressed hope for a successful confirmation. “I want him to succeed,” said committee chairman Patrick Leahy (D-VT). But at the same time, the Senate will not “support someone blindly,” noted Sen. Lindsey Graham (R-SC). While Mukasey has a strong legal and national security background, questions remain as to whether he would stand up to the President and ensure that the Justice Department is independent of White House political influence. For example, although he has shown a “willingness to stand up to the powerful,” Mukasey has demonstrated a disturbing tendency on issues such as wiretapping to grant the government “the benefit of the doubt.” As the Alliance for Justice notes, “Candid responses and complete answers by Judge Mukasey, both about his legal views and his plans for the future of the Department, could be the first step in the long road towards rebuilding the tattered reputation of an institution historically revered for its independence.”
HARSH TORTURE TECHNIQUES: A “major focus” of the hearings will center around a secret 2005 Justice Department memo endorsing “the harshest interrogation techniques ever used by the CIA,” despite a public statement by the Department in 2004 declaring that torture was “abhorrent.” “I understand that he’ll [Mukasey] say he’s against torture,” Leahy told reporters on Tuesday. “I want him to make it very clear that will be the legal policy of this country; not to say publicly, ‘We’re against torture,’ but then out the back door issue a legal opinion saying we can torture.” Mukasey has already indicated some support for the Bush administration’s torture policies. In a September meeting with conservatives, Mukasey reportedly said “he understood the need for the CIA to use some ‘enhanced’ interrogation techniques.” In Oct. 2001, a Jordanian detainee who “had been beaten in the federal detention center in Manhattan, producing bruises that were hidden beneath his orange prison jumpsuit,” came before Mukasey’s court. The New York Times reported that Mukasey seemed “little concerned,” commenting, “As far as the claim that he was beaten, I will tell you that he looks fine to me.” As Marjorie Cohn of the National Lawyers Guild points out, one question for Mukasey today is, “Can you think of any circumstance under which it would be lawful to torture a prisoner in US custody?”
SECRET DETENTIONS: The Senate Judiciary Committee also needs to take a look at Mukasey’s record on detainees and ask whether he will “independently review the constitutionality of ongoing programs, such as electronic eavesdropping and CIA rendition camps,” according to Duke University professor Erwin Chemerinsky. Mukasey has urged Congress to “fix a strained and mismatched legal system” that allowed the “FBI to detain, without charges, an estimated 70 people” after 9/11. All but one of those detained were Muslim, and at least 28 of them were never charged with a crime. But as chief trial judge in Manhattan at that time, Mukasey approved such secret warrants and sharply criticized a fellow U.S. District Court judge “who ruled that warrants issued in the post-Sept. 11 roundup was an illegitimate use of the law.” “Is he going to take steps to make sure that we don’t have another roundup like that?” asked ACLU legislative counsel Chris Anders. Mukasey has also indicated that he believes “protections accorded defendants in the ordinary criminal process may not be appropriate in terrorism cases.”
EXPANDED WIRETAPPING POWERS: Today, the House will consider legislation to limit the president’s wiretapping powers, despite objections from the White House. As Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel, writes in his new book, the administration’s aim has been to get “rid of that obnoxious [FISA] court.” According to Sen. Charles Schumer (D-NY), Mukasey has indicated a willigness to conduct an independent review of the Bush administration’s wiretapping program. But in the past, Mukasey has shown some support for the Bush administration’s spying policies. For example, in 2000, he said that the nation’s choice “is either to have no surveillance at all or to have totally uncontrolled surveillance…the existing system is a compromise that Congress was forced to make.” In 2004, he “dismissed fears of the government’s ability to subpoena tangible things like business records.” Mukasey wrote that “the hidden message in the structure of the Constitution is that the government it establishes is entitled…to receive from its citizens the benefit of the doubt.” He also endorsed the Patriot Act, noting that its “awkward name” may “very well be the worst thing about the statute.”
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