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

By Emily Bazelon
Posted Monday, Sept. 17, 2007, at 11:54 AM ET

(Continued from page 1)

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.

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Emily Bazelon is a Slate senior editor.
Photograph of Michael Mukasey by Chip Somodevilla/Getty Images.
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