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.
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."
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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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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."
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.
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."
"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
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