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Justice: Who Is Michael Mukasey?

Today, President Bush nominated retired federal judge Michael Mukasey to replace Alberto Gonzales as the nation's Attorney General.

SEPTEMBER 17, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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JUSTICE

Who Is Michael Mukasey?

Today, President Bush nominated retired federal judge Michael Mukasey to replace Alberto Gonzales as the nation’s Attorney General. Nominated as a New York federal district court judge by President Reagan in 1987, Mukasey has amassed a great deal of experience on national security issues. Over his career, he “presided over the trials of ‘blind sheik’ Omar Abdel Rahman and others in connection with the 1993 World Trade Center bombing.” He also handled the case against Jose Padilla, who was declared an “enemy combatant” by Bush in 2002. In the Padilla case, “Mukasey ruled that the government had the power to make the declaration but found that [he] should have access to his lawyers.” Given the the urgent need to repair a disheveled Department of Justice in the wake of Gonzales’s departure, Mukasey is a sound pick that should draw bipartisan support. On the most important criteria for the next Attorney General nominee — whether the person will be “someone who would simply be doing the president’s bidding” — Mukasey has shown an independent streak that should serve him well if he maintains it in his new job. Kenneth Bialkin, a partner at the New York office at Skadden, Arps, said of Mukasey, “There is nobody who has a greater sense of integrity and conscientiousness, and nobody who would be less corruptible than he.” It will now be up to the Senate to receive commitments from Mukasey that he understands what being an independent Attorney General entails, the concept of checks and balances, and the need to cooperate with congressional oversight.

A RECORD OF STANDING UP TO BUSH: Sen. Charles Schumer (D-NY), who had previously recommended Mukasey to the White House as a Supreme Court pick, said, “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.” Salon’s Gleen Greenwald writes that in the Padilla case, “Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers.” After the Bush administration resisted his order that Padilla be granted access to counsel, Mukasey sternly wrote in a strongly-worded ruling (just a few days prior to the initiation of the Iraq invasion), “Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel. … It is a ruling — a determination — that he will be permitted to do so.” One of Padilla’s lawyers, Donna Newman, said, “I admire him [Mukasey] greatly.” Greenwald writes, “Whatever else may be true about him, then, Judge Mukasey was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the terrorists.”

CONCERNS ABOUT MUKASEY: While Mukasey is a qualified nominee who is certainly a better choice than other names that have been floated, there are still issues of concern for progressives. Mukasey’s respect for the Constitution and the rule of law should not be overstated. While Mukasey ruled that Padilla was entitled to counsel, he “also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as ‘enemy combatants,’ and that they need not be charged with any crimes.” Mukasey’s opinion was set to be tested before the Supreme Court until the administration, fearing a defeat, transferred Padilla to a criminal court and tried him there. “If Mukasey is the nominee, he should certainly be questioned aggressively about whether he believes that the President does have this authority [to indefinitely detain Americans without charge] and whether he would intend as Attorney General to defend that authority if it were exercised again.” Mukasey will also likely be questioned about an op-ed he penned in the Wall Street Journal last month that essentially agreed with the Bush administration argument that federal courts are not equipped to deal with national security cases. Mukasey urged Congress to consider creating national security courts beyond the military commissions in existence at Guantanamo Bay. While Muksaey’s idea for national security courts would provide for some judicial review, it is not a preferable solution. The federal courts have evolved ample means for handling the special challenges posed by national security cases, and the case has not been made as to why those means are inadequate.

POLITICAL HEAT FROM THE RIGHT: Given Mukasey’s prior recommendations of support from Schumer and Nan Aron, the head of the liberal judicial activist group Alliance for Justice, the right-wing is sounding concerns that Mukasey isn’t the right choice. Some right-wing groups have reportedly “been drafting a strategy to oppose him.” “Conservatives might have some serious concerns with Mukasey,” said one Republican close to the White House. “He’s not well known in the community.” The White House was “seeking over the weekend to tamp down concern in the conservative legal world about Mukasey’s views.” Attempting to head off anger from the right flank, the White House leaked word of Mukasey’s nomination to trusted neconservative ally Bill Kristol, who proceeded to advise conservatives to “hold their fire” and “support the president.” Mukasey does not hail from Bush’s inner circle of Texan friends and allies. Rather, he is a longtime friend of former New York City Mayor Rudy Giuliani (R) and he is currently advising the Giuliani campaign on judicial matters.

SENATE STILL HAS A JOB TO DO: Mukasey appears to be a better pick than the other rumored frontrunner, former Solicitor General Ted Olson, who had raised concerns due to his partisan fidelty to Bush. Senate Majority Leader Harry Reid’s (D-NV) insistence that “Ted Olson will not be confirmed” successfully persuaded the White House to choose a nominee who can gain bipartisan support. Now, the Senate must determine whether Mukasey would assert true independence. Center for American Progress legal analyst Mark Agrast writes, “The Senate must consider carefully whether, if confirmed, Judge Mukasey will carry out his duties with the independence and integrity that eluded his predecessor.” Schumer said, “For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of US attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee.” Would Mukasey have said no to warrantless wiretapping? Would he have signed off on torture? Or refused to allow the White House to intercede in the Justice Department’s affairs? Mukasey must do more than mouth the need for independence; he must prove it with his answers. Recall, even Alberto Gonzales claimed in his confirmation hearings to “understand the differences” between being Bush’s lawyer and being the nation’s Attorney General. He didn’t. Tell the Senate you demand true independence.

UNDER THE RADAR

IRAQ — ANTI-AMERICANISM HAS RISEN DRAMATICALLY IN ANBAR PROVINCE: “Anbar province is a good example of how our strategy is working,” said President Bush in his address to the nation last Thursday night. “During my visit to Anbar on Labor Day, local Sunni leaders thanked me for America’s support,” he added. A new poll of Iraqi public opinion, however, shows that the vast majority of Anbar residents want America to leave their both their province and their country. In the survey, conducted Aug. 17-24 for ABC News, the BBC, and NHK, 76 percent of Anbar residents “said the United States should withdraw now — up from 49 percent” from March, “and far above the national average.” Seventy-two percent “expressed no confidence whatsoever in United States forces.” Without a timetable included, every single resident of Anbar who was polled “opposed the presence of Americans in Iraq — 69 percent ‘strongly so. Every Anbar respondent called attacks on coalition forces ‘acceptable,’ far more than anywhere else in the country.” Though positive ratings of local security increased, “nobody surveyed in Anbar last month gave the United States any credit.”

MILITARY — GATES RAISES POSSIBILITY OF DEPLOYING MORE NATIONAL GUARD AND RESERVE TROOPS TO IRAQ: Secretary of Defense Robert Gates repeatedly asserted yesterday on ABC’s This Week that the planned “drawdown” of troops in Iraq is based on “success” on the ground, not on the military being “overstretched” or unable to maintain the “surge.” Gates insisted that the military was not broken, noting the large size of the armed forces: “After all, we’ve got 2.1 million men and women in the United States armed forces. If the circumstances required it, other choices could have been made.” Host George Stephanopoulos continued to push Gates, asking, “So if General Petraeus comes back in March and says we’re making some progress, but we can’t continue to draw down right now, where would the troops come from?” Gates tried to back away from answering a “hypothetical,” but eventually conceded that they would potentially have to deploy more National Guard and Reserve forces. Tapping more National Guard forces, however, is unrealistic. According to a recent report by a congressional commission, nearly “90 percent of Army National Guard units in the United States are rated ‘not ready,” largely “as a result of shortfalls in billions of dollars’ worth of equipment.” In fact, the National Guard is now unable to effectively respond to emergency situations within the United States because of the burden of the war in Iraq.

IRAQ — IRAQ INTERIOR MINISTRY BANS BLACKWATER AFTER FATAL CIVILIAN SHOOTING: Iraq’s Interior Ministry has banned the American private security firm, Blackwater USA, from operating in Iraq after eight civilians were killed after Blackwater members guarding a State Department motorcade allegedly responded to gunshots with open fire. In 2003, the Bush administration awarded the firm a $21.3 million no-bid contract to provide security for then-Amb. Paul Bremer. In 2006, the company moved from solely providing private security details “to a more ‘overt combat role,’ essentially becoming an army for hire.” Though dozens of Blackwater mercenaries have been killed or wounded in Iraq, notably the four guards who were killed in Fallujah in 2004, the Pentagon does not include these causalities in its official tally. Iraq’s Interior Ministry has indicated it will investigate Sunday’s incident and press charges against the individuals involved. It is unclear whether the Iraqi government has the authority to prosecute Blackwater employees. As the AP notes, “Unlike soldiers, they are not bound by the Uniform Code of Military Justice. Under a special provision secured by American-occupying forces, they are exempt from prosecution by Iraqis for crimes committed there.”

THINK FAST

Director of National Intelligence Mike McConnell “heads to Capitol Hill this week” seeking to extend the government’s surveillance authority. “McConnell is scheduled to appear before the House Judiciary Committee on Tuesday and before the House Intelligence Committee on Thursday.”

While Rep. Barney Frank (D-MA) predicts that a federal ban on job discrimination against GLBT workers “will win House approval in coming weeks,” he and other gay rights supporters are “less optimistic” about the Senate, “where they would need 60 votes” to overcome stall tactics from conservatives, such as a filibuster.

In a “bluntly worded” cable, Amb. Ryan Crocker “said the admission of Iraqi refugees to the United States remains bogged down by ‘major bottlenecks’ resulting from security reviews. About 2 million Iraqis are displaced inside Iraq, and an estimated 2.2 million more have fled” to neighboring nations.

Joel A. Scanlon has been named director of strategic initiatives, taking over the ‘think tank’ within the White House long led by the departed Peter H. Wehner.” Scanlon “is a former research assistant to syndicated columnist Charles Krauthammer.” 

The UK Sunday Telegraph reports that the Pentagon is “taking steps to place America on the path to war with Iran,” developing a list of up to 2,000 bombing targets in that country.

Today in Iraq, “almost every archaeological site in southern Iraq is under the control of looters.” Many archaeological workers trained under Saddam Hussein are now “using their knowledge to join the looters in digging through the ancient cities.”

And finally: The newest tourist attraction in Minneapolis is the airport bathroom made famous by Sen. Larry Craig’s (R-ID) arrest. “People have been going inside, taking pictures of the stall, taking pictures outside the bathroom door — man, it’s been crazy,” said Royal Zino, who owns a shoeshine shop next to the bathroom.

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GOOD NEWS

At last night’s Emmy Awards, Al Gore won the “interactive television services” award for Current TV, his global television network that allows viewers to “create and influence what airs on TV.”

STATE WATCH

NEW YORK: Attorney General Andrew Cuomo (D) investigates energy companies’ plans to build coal-fired power plants.

MISSOURI: Gov. Matt Blunt’s (R) staff “routinely purge[s] e-mails from the state system,” potentially breaking state law.

ALABAMA: “Sweeping” school rezoning plan “brings out cry of resegregation” for area African-Americans.

BLOG WATCH

THINK PROGRESS: Defense Secretary Robert Gates: I would recommend that the President veto giving troops more time at home.

THINK PROGRESS: Former Defense Secretary Donald Rumsfeld: “I have not even attempted” to follow what’s going on in Iraq, too busy “arranging my papers.”

REALITY-BASED COMMUNITY: New study predicts Iraqi civilian deaths top 1.2 million, continues trend of independent studies finding higher than reported civilian casualty rates.

CROOKS AND LIARS: Sen. Chuck Hagel (R-NE): the “position” that President Bush has “put our military in” is “just wrong, and it’s dangerous.”

DAILY GRILL

“It’s a little curious to me that people are proposing a change in strategy when in fact the current strategy appears now to be working.”
— Sen. John Cornyn (R-TX), 8/24/07, on Sen. John Warner’s (R-VA) proposal to bring approximately 5,000 troops home from Iraq by Christmas

VERSUS

“I’m pleased that President Bush is listening to his commanders on the ground and with his announcement this evening that some troops will come home before the year’s end.”
— Cornyn,  9/14/07, on Bush’s proposal to bring approximately 5,000 troops home from Iraq by Christmas