He's no pushover, but will Bush's pick for AG rein in the administration on executive power?

He's no pushover, but will Bush's pick for AG rein in the administration on executive power?

He's no pushover, but will Bush's pick for AG rein in the administration on executive power?

The law, lawyers, and the court.
Sept. 17 2007 11:54 AM

Measuring Mukasey

He's no pushover, but will Bush's pick for AG rein in the administration on executive power?

Michael Mukasey. Click image to expand.
Michael Mukasey

By what yardstick are we to measure Bush's pick for the next attorney general? We know that this president only chooses avowed and proven conservatives for positions like this one. So, the more pressing questions are more lawyerly ones: Will Bush's new nominee roll over whenever asked, a la Alberto Gonzales? Will he dare to rein in the administration on executive power?

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Michael Mukasey, Bush's pick to be announced this morning, is nobody's patsy. As a federal district court judge for 20 years, including service as chief judge of the ego-filled Southern District of New York—where he had the near-universal respect of judges and lawyers—Mukasey knows how to run his own show. Federal judges are the lords of their small fiefdoms; bending and scraping isn't in their repertoire. Plus, Mukasey, 66, is a Reagan appointee whose major political tie is not to President Bush for a few months, but to presidential hopeful Rudy Giuliani. If he doesn't agree with Vice President Dick Cheney and his counsel, David Addington, Gonzales' past minders, he's not going to go along with them. From a telling essay that Mukasey recently wrote, it's already clear that he doesn't share Cheney's view that the best law is law the president makes with as little input from the other branches of government as possible.

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Nor is he going to put up with the partisan shenanigans that made a shambles of Gonzales' DoJ. He'll enter with the tentative respect of the career lawyers who are the backbone of the Department of Justice, though he'll ultimately have to prove himself. Mukasey is best known for presiding over the 1995 trial of Sheikh Omar Abdul Rahman and co-defendants for their plot to blow up the United Nations and other targets. The 1995 terrorists got convictions and lengthy sentences. Mukasey got a 24-hour bodyguard, a real sacrifice of privacy.

I remember the bodyguard from a workshop on sentencing at Yale Law School that I attended with Mukasey several years ago (he was a distinguished guest; I was a measly student). I also remember Mukasey as tough—smart and open-minded, but at bottom, a law-and-order man. As one law professor puts it, he comes across as "very hard-nosed, conservative at the core. Probably less enamored of executive power than the real Kool-Aid drinkers, but a big fan of prosecutorial power."

Which leads me to Mukasey's recent essay, published in the Wall Street Journal. (Did he write it with half an eye on the AG job? I can't help wondering.) He argued that the prosecution of Jose Padilla—which Mukasey handled until his retirement from the bench last year—demonstrates that federal courts should not try terrorists. Never mind that after the government jerked Padilla in and out of the federal system and reportedly subjected him to serious abuse, he was convicted by a jury on charges that bore little relation to the allegations that former Attorney General John Ashcroft originally—and so publicly—made against him. According to Mukasey, Padilla's case does not stand for the victory of security concerns over civil liberties in federal court, but rather shows why "current institutions and statutes are not well suited" to terrorism cases. The rules for ordinary criminal defendants—that is, regular old constitutional law—should not apply to bad guys "who have cosmic goals that they are intent on achieving by cataclysmic means."

Mukasey derides terrorism prosecutions in federal court for putting "our secrets at risk" and discouraging our allies from sharing information with us. He warns of dire results if the Supreme Court rules this upcoming term that Guantanamo detainees have a right to bring their claims in federal court. An alleged terrorist could insist to his interrogators that he wanted to see a lawyer, as Khalid Sheikh Mohammed supposedly did, and "this bold joke could become a reality." Mukasey doesn't offer his own fix but floats two proposals that have been offered by others: "[t]he creation of a separate national security court" with life-tenured judges and the use of civil commitment standards for the mentally ill for other "dangerous people." Most surprisingly, Mukasey suggests that Congress might need "to modify the Supreme Court's appellate jurisdiction." No unwelcome Guantanamo rulings if the justices simply can't hear the cases.

These ideas, in one variation or another, have been floated for years by other security hawks. But in the hands of an authoritative attorney general, which Mukasey would surely be, they could move from op-eds to legislation. Mukasey already has the backing of Sen. Charles Schumer, D-N.Y., which means that barring some unforeseen mess, he'll be easily confirmed. When he testifies to Congress about the need to bar the Guantanamo detainees from federal court, how likely are lawmakers to temper his demands? Before you answer, remember that this is the same Congress who did exactly as the administration wanted on warrantless wiretapping this summer.

Mukasey has gotten kudos from smart liberals for ruling in 2003, over the government's objections, that Padilla could meet with his lawyer. It's true that his independence was on display. When the government asked him to reconsider his ruling, he did so while icily telling Bush's lawyers to get lost. But Mukasey also ruled a year earlier that Bush had the inherent power as commander in chief to hold Padilla as an enemy combatant. "It matters not that Padilla is a United States citizen captured on United States soil," Mukasey wrote. The U.S. Court of Appeals for the 2nd Circuit, which includes New York, rejected his reading of the law. The 4th Circuit took Mukasey's view when Padilla's case was transferred south. The Supreme Court punted and never resolved the issue. So, Mukasey's opinion still ultimately stands as a giant tribute to the president's commander-in-chief powers. And should the changes he discusses in his WSJ essay come to pass, would the new attorney general who helped hammer out an alternate regime for trying accused terrorists think it should still include a constitutional right to counsel?

Given the administration's past go-it-alone mentality (known more formally as the "unitary executive theory"), it's certainly reassuring that Mukasey thinks that Congress, not the president, has the constitutional authority to make the sweeping changes he advocates. At least we won't have a new special court by executive order. But to some degree, this is a concession the Bush administration has already learned to make (see again the new wiretapping law). And in the end, it will make any change that becomes law far more likely to stick. The Weekly Standard got it right this weekend: Conservatives should line up for Mukasey rather than cry over Bush's decision to pass over former Solicitor General Ted Olson. Mukasey doesn't have Olson's partisan history. He's conservative without having a track record as devotedly pro-life or anti-affirmative action. But as Bill Kristol put it, Mukasey "will, I believe, come to judgments similar to Olson's on key issues of executive power and the war on terror." For a lame-duck administration with the huge DoJ embarrassment of the past year, that's a pretty damn good compromise.