Michael B. Mukasey

Michael B. Mukasey, Mr. Bush's choice to replace Alberto Gonzalez as Attorney General, is the latest name to hit the ears of pundits and the pens of editors all over the United States. The most common talking points about him refer to his service as the Chief Justice of the District Court of the Southern District of New York, a prestigious position, to be sure. He's seen to be smart enough to head up the Justice Department, and yet independent enough to sooth even the most partisan Democratic Senator. He's handed down tough sentences, most notably a life sentence to the so-called "Blind Sheikh" Omar Abdel-Rahman in October of 1995 for masterminding the 1993 World Trade Center bombing. Already, his nomination has served to lay the groundwork for a partisan battle in the Judiciary Committee of the Senate, between Senators Patrick Leahy and Arlen Specter, over issues surrounding the Bush Administration's lack of cooperation with the Congress.

However, how are we supposed to judge whether he is worthy of such a vaunted position as the chief law enforcement office of the United States? Thankfully, the retired judge pubhlished two op-ed pieces in the Wall Street Journal from which we can draw conclusions.

In the first piece, published on May 10, 2004, Mr. Mukasey seeks to redress critics of the USA PATRIOT Act for their "hysteria" in opposing the Act. Hysteria which he went on to describe as "recreational." He goes on to criticize the American Library Association forcriticizing the records disclosure portions of the PATRIOT Act and declining to denounce the Cuban Government for holding 10 librarians in prison, support the "sneak and peek" type warrant that has been the object of much criticism from privacy advocates, and equating Saddam Hussein with terrorism out of the side of his mouth. However, the most interesting and disturbing portion of the piece is the final conclusion in which Mr. Mukasey outlines his vision of the constitution. He argues that since the Bill of Rights is not included in the "boring part" of the Constitution, those freedoms and rights are subordinate to the government established by the body of the Constitution. He goes on to write: "It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them." I quote this entire statement as it stands on its own merits. It seems an interesting side note that he specifically refers to these rights as "God-given." His final conclusion is that the population should give the Government the benefit of the doubt because the same Government is notionally responsible for ensuring that you continue to enjoy the Bill of Rights.

In the second piece, published yesterday, Mr. Mukasey advocates for the creation of a special inferior court expressly for the prosecution of terrorism suspects, as these suspects require special handling and financial considerations that, in his opinion, strain the resources of the judicial system. He then goes on to justify his signature on the material witness warrant for the arrest of Jose Padilla. The arrest under this type of warrant, "used frequently" after 9/11," was necessary as authorities in the U.S. don't have the statute that allows for 'investigative detention on reasonable suspicion." The term almost sounds innocuous. In further critiques of the law of the land, Mr Mukasey critiques the requirements of a conspiracy conviction, that the prosecutor is required to release a list of unindicted co-conspirators to the defendant. Because of this provision, in 1995 Osama bin Laden, while in the Sudan, found out that the United States Government thought he might have something to do with the 1993 World Trade Center Bombing. Perhaps his most interesting point, though is a plea for the reader to "consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases." I would hope, perhaps against hope, that Mr. Mukasey, should he be confirmed as Attorney General, would keep that from happening. The most ominous and threatening statement of the whole piece is last: "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." Again, this statement stands on its own merits.

Okay, so his words might not portray him as the best candidate to repair an ailing Justice Department, but perhaps they are only words. The philosophical rantings, if you will, of an otherwise commendable public servant who is beyond reproach.

To reflect on some of Mr. Mukasey's actions, Melanie Lefkowitz of the Newsday, employed the mighty weapon that is the Freedom of Information Act and found some interesting results. To begin with putting this issue in its proper contrast, in 2004, the Inspector General for the Justice Department released a report stating that no federal judge had any credible threats against their lives. All told, the Federal Marshalls Service between 1999 and 2005 spent $22.2 million dollars on a full-time security detail for Judge Mukasey. Some of the highlights are rent that was paid to the judge for space for the security detail in each of his residences, budget categories such as "ATM fees," hundreds of blacked-out invoices, and $407.82 to fix a water pipe that burst in the judge's second home in the Hamptons.

Well, barring any other method, one can surely judge a man's character by the company he keeps.

Bloomberg.com has two articles singing Mr. Mukasey's praises, here and here. For anyone who's keeping score, the editorial board of the New York Times thinks that Senator Leahy should delay the nomination hearings for the former judge. On the other side of the question, the Seattle Post-Intelligencer, the San Jose Mercury News, the Baltimore Sun, the Boston Globe, the Philadelphia Inquirer, the San Antonio Express News, and, of course, the Wall Street Journal believe that Mr. Mukasey is the man for the job in terms that are various forms of glowing.

Mr. Bush, according to some has found the perfect choice for Attorney General. Perhaps they realize they have found the attorney who is smart enough to properly manipulate policy and personnel decisions and cold enough to have allowed U.S. Government officials to take custody of Joseph Padilla in 2002 and consider the Bill of Rights a granted privilege.