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Mukasey's Not the ManHe'll be a weak attorney general.

By Bruce Fein
Posted Wednesday, Sept. 19, 2007, at 5:55 PM ET

(Continued from page 1)

Mr. Mukasey will adamantly defend the crippling of congressional oversight and legislation by the Bush-Cheney duumvirate. If he is asked by the Senate judiciary committee whether the president is empowered to sign bills passed by Congress into law but disregard provisions he believes are unconstitutional, he will nod. If he is asked whether President Bush enjoys inherent constitutional authority to flout any law passed by Congress to regulate the collection of foreign intelligence (for instance, the recently enacted Protect America Act or the Detainee Treatment Act that prohibits torture), he will nod. If he is asked whether the president is crowned with power to prevent any current or former government officials from testifying about executive branch communications, he will nod again. And on and on, he will agree. The president may detain American citizens indefinitely as unlawful enemy combatants based on secret evidence. The United States is a battlefield where military force and military jurisdiction can be invoked by the president. The president is legally entitled to kidnap, imprison, and abusively interrogate terrorist suspects abroad on his say-so alone. Military commissions, which play judge, jury, and prosecutor in the trial of war crimes, are necessary to displace independent civilian courts with the trappings of due process. Journalists may be prosecuted under the Espionage Act for disclosing national security wrongdoing like the National Security Agency's warrantless domestic surveillance program, in contravention of the Foreign Intelligence Surveillance Act of 1978.

And Mr. Mukasey will assuredly not appoint a special prosecutor, á la Patrick Fitzgerald, Archibald Cox, or Leon Jaworski, to make independent constitutional judgments of what the president has done over the past six years under the banner of national security. Scooter Libby will be thrown in his face daily as a reminder about the political hazards of prosecutorial independence. He lacks the experience in Washington to withstand the assault.

Pliant attorneys general have been the rule, not the exception. Wartime strengthens the rule. President Franklin D. Roosevelt's attorney general, Francis Biddle, initially opposed FDR's blatantly racist World War II decision to herd 120,000 Japanese Americans into concentration camps with no evidence of sabotage or disloyalty. He wrote to the president on Feb. 17, 1942: "For several weeks there have been increasing demands for the evacuation of all Japanese, aliens and citizens alike, from West Coast states. A great many West Coast people distrust the Japanese, various special interests would welcome their removal from good farm land and the elimination of their competition. … My last advice from the War Department is that there is no evidence of imminent attack and from the F.B.I. that there is no evidence of planned sabotage." And yet despite these strong words, as Biddle recounted in his autobiography, the next day he decided not to oppose President Roosevelt any further.

Mr. Mukasey fits the Francis Biddle model like a glove. Like Mukasey, Biddle served as a judge, on the United States Court of Appeals. It was thought he enjoyed a habit of independence that would have steeled him to FDR's overtures. No such luck. Mukasey sports a longer tenure on the bench as a United States District Court Judge, but his rulings there, and extrajudicial statements, reinforce the prediction that he will echo rather than challenge the White House. In the Padilla case, Mukasey held that citizens could be held indefinitely as enemy combatants on President Bush's featherweight evidence. He has advocated a separate system of criminal justice denuded of customary due process protections for accused international terrorists.

When Mukasey made these rulings as a federal judge, he commanded life tenure and protection against reduced compensation, features the Founding Fathers understood would promote independent thinking. As attorney general, in contrast, Mukasey will serve at the pleasure of the president. In light of his record, to expect him from that precarious perch to challenge what has been constitutional gospel in the White House for more than six years would reflect a triumph of hope over experience, to borrow from philosopher Sam Johnson. Johnson's commentary was about second marriages; in this case it holds true for second jobs.

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Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
Photograph of Michael Mukasey by Chip Somodevilla/Getty Images.
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