Mukasey as AG?

http://www.nysun.com/article/62729?page_no=1

[rquoter]Bush To Tap Mukasey for Justice
Schumer Suddenly Turns Guarded

BY JOSEPH GOLDSTEIN - Staff Reporter of the Sun
September 17, 2007
URL: http://www.nysun.com/article/62729

President Bush's choice of Michael Mukasey, a retired judge from New York who has received the support of Senator Schumer, to be the next attorney general signals that the White House wishes to avoid a Senate confirmation battle.

Still, it is unclear whether Mr. Schumer is willing to shepherd Judge Mukasey through confirmation hearings whose main topic could shape up to be the politicization of the Justice Department during Attorney General Gonzales's tenure.

Mr. Schumer, one of the Senate's fiercest critics of Mr. Gonzales, has long touted Judge Mukasey for a position higher than the district court judgeship he held for 19 years. In 2003, the senator recommended the judge as an eventual successor to Chief Justice Rehnquist on the Supreme Court. Earlier this year, he floated Judge Mukasey's name for the attorney general position.

In a statement issued last night, the senator was somewhat guarded. "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," the statement said.

Judge Mukasey emerged as the leading candidate only in the past week. The Associated Press last night reported that Mr. Bush would announce him today as the nominee. Earlier in the week, a leading Supreme Court attorney under consideration by the White House, Theodore Olson, was pronounced unconfirmable by the Senate majority leader, Harry Reid.

Among lawyers, Judge Mukasey has long been seen as a possible candidate for a seat on the 2nd Circuit U.S. Court of Appeals, and that he never was nominated to the court suggests he lacked significant political pull in Washington. Mr. Bush has passed over Judge Mukasey for all five vacancies on the circuit that he has filled during his presidency. Last year, Judge Mukasey, who was nominated by President Reagan, left the bench in order to pursue a larger salary at his old law firm, Patterson Belknap Webb & Tyler, sources close to the judge said.

For decades, Judge Mukasey has been a close friend of Mayor Giuliani. He worked beneath Mr. Giuliani both at Patterson Belknap and at the U.S. attorney's office in Manhattan. It was Mr. Mukasey who swore in Mayor-elect Giuliani in 1994 and 1998. Along with Mr. Olson, Judge Mukasey currently advises the Giuliani campaign on judicial matters. Judge Mukasey's son, Marc, is a partner in the New York office of Mr. Giuliani's law firm, Bracewell & Giuliani LLP.

Given his close ties to Mr. Giuliani, Judge Mukasey has faced teasing from friends who have told him not to get too comfortable back at his firm given the prospect of a Giuliani presidency, a source said.

Judge Mukasey's national reputation rests largely on his handling of the nearly year-long trial in 1995 of a blind sheik and nine followers who plotted to blow up landmarks around New York City, including the United Nations. That trial remains the Justice Department's most ambitious terrorism prosecution to date, and it impressed deeply upon the judge the danger that terrorism poses to this country, acquaintances of the judge have said. Long before September 11, 2001, the judge had a daily reminder of that threat in the form of an around-the-clock security detail provided by the U.S. Marshals Service.

"I think the country could sleep well with him on that job," a partner at the New York office at Skadden, Arps, Slate, Meagher & Flom LLP, Kenneth Bialkin, said. "There is nobody who has a greater sense of integrity and conscientiousness, and nobody who would be less corruptible than he."

He also initially handled a case that has been at the center of the national debate over presidential authority — that involving Jose Padilla, the American citizen the government held for three years as an enemy combatant before bringing criminal charges against him in Florida. In that case, he ruled that Mr. Bush did have the authority to hold Padilla, an American citizen arrested in Chicago as an enemy combatant, a claim that has yet to receive Supreme Court review.

In writings and speeches in recent years, Judge Mukasey has questioned the ability of the civilian criminal justice system to handle terrorism prosecutions. In particular, Judge Mukasey has expressed concern that the rules governing evidence in a criminal trial require the government to publicly disclose too much about its sources.

In an op-ed piece published last month in the Wall Street Journal, Judge Mukasey urged Congress to consider creating national security courts beyond the military commissions in existence at Guantanamo Bay, Cuba. The op-ed contained few policy details on what rules would govern such courts. [/rquoter]

 

http://opinionjournal.com/extra/?id=110010615

[rquoter]'The Spirit of Liberty'
Before attacking the Patriot Act, try reading it.

BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT

(Editor's note: This morning President Bush nominated Judge Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site May 10, 2004.)

Learned Hand, among the last century's greatest judges, defined the spirit of liberty 60 years ago as "the spirit which is not too sure that it is right." We must consider what message we can take from those words today.

We are now in a struggle with an extremism that expresses itself in the form of terror attacks, and in that we face what is probably the gravest threat to this country's institutions, if not to its physical welfare, since the Civil War. When one tries to assess people who can find it in themselves to fly airplanes into buildings and murder 3,000 of us in a single morning, whatever else you can say about such people, they are very sure that they are right; and wouldn't it be music to their ears to hear that our spirit says we're not too sure that we are right?

What measures we should take to protect ourselves, both abroad and at home, is now the subject of heated debate as we participate in a war against extremism, not so much to make the world safe for democracy as to achieve a more modest-sounding but, I would suggest, no less important goal--to make the world safe for us. Regrettably, like many debates, our current one already has seen its share of half-truths and outright falsehoods.

They began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide. That is not many when you realize that they investigate not only terrorism, but also every other federal crime aside from counterfeiting, tax evasion and mail fraud; that they share responsibility for drug investigations with the Drug Enforcement Administration--a pretty hefty set of assignments--and that they had numerous leads as to those responsible for the attack on Sept. 11. Under those circumstances--with many leads to work on and relatively few agents to do that work--does it really stand to reason that they spent their time rounding people up based on nothing other than religion and ethnicity?

No doubt there were people taken into custody, whether on immigration warrants or material witness warrants, who in retrospect should not have been. If those people have grievances redressable under the law, those grievances can be redressed. But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences.

More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational.

My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.

First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.

In addition to the library association, many towns and villages across the country, notably Berkeley, Calif., and Amherst, Mass., have announced that they will not cooperate with any effort to gather evidence under the statute. A former vice president has called for the statute's repeal, and a former presidential candidate has called the act "morally wrong," "shameful" and "unconstitutional."

I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law "Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism." You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.

Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists. Recall that when Saddam Hussein was captured, he had with him $750,000 in $100 bills.

The statute also breaks down the wall that has separated intelligence gathering from criminal investigation. It allows intelligence information to be shared with criminal investigators, and information that criminal investigators unearth to be shared with those conducting intelligence investigations. I think many people would believe this makes sense, although a series of bureaucratic decisions and a stark misreading of the Foreign Intelligence Surveillance Act for years made this impossible, and thus prevented the government from fulfilling its most basic responsibility under the Constitution: "to provide for the common defense [and] promote the general Welfare."

What difference would this make? Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.

The provisions in the law that have generated the most opposition have to do with investigative techniques, including electronic surveillance and the gathering of business records. The electronic surveillance provisions give investigators access to cable-based communications, such as e-mail, on the same basis as they have long had access to telephone communications, and give them access to telephone communications in national security cases on the same basis on which they already have such access in drug cases.

I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.

The statute also codifies the procedure for issuing and executing what are called "sneak and peek" warrants that allow agents, with court authorization, to enter premises, examine what is there and then leave. These warrants had been issued by courts before the Patriot Act was passed, including my own court--although I have never issued one myself--on the fairly simple logic that if it is reasonable under the Fourth Amendment to enter premises and seize things, it should also be reasonable to enter premises and not seize things. The statute permits agents to delay disclosure of their presence to the person who controls the premises, again with court authorization. Here too, the logic seems obvious: If you leave behind a note saying "Good afternoon, Mr. bin Laden, we were here," that might betray the existence of an investigation and cause the subjects to flee or destroy evidence. There are analogous provisions that were in existence long before the Patriot Act permitting a delay in notifying people who are overheard on wiretaps, and for the same reason.

What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.

Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11--the case of the "Unabomber," Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library--a devastating bit of corroborative circumstantial evidence.

Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it. It helps not to conduct the debate in terms that suggest it gives the government the power to investigate us based on what we read, or that people who work for the government actually have the inclination to do such a thing, not to mention the spare time.

As we participate in this debate on what is the right course to pursue, I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution--principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. 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.

So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself--and us--alive.

Mr. Mukasey is chief judge of the U.S. District Court, Southern District of New York. This is adapted from a speech he gave last Wednesday, on his acceptance of the Learned Hand Medal for Excellence in Federal Jurisprudence. [/rquoter]

 

http://opinionjournal.com/extra/?id=110010616

[rquoter]Jose Padilla Makes Bad Law
Terror trials hurt the nation even when they lead to convictions.

BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT

(Editor's note: This morning President Bush nominated Mr. Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site Aug. 22.)

The apparently conventional ending to Jose Padilla's trial last week--conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization--gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent. He will be sentenced--likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.

It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.

Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.

Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive--a device known as a dirty bomb.

However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.

The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.

Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.

Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.

The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.

The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.

The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.

In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled--as it is in all cases that charge conspiracy--to turn over a list of unindicted co-conspirators to the defendants.

That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.

Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.

The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.

Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.

In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.

Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement--made without benefit of legal counsel--could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.

The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.

First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.

There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.

These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.

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.

Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York. [/rquoter]

 

Mukasey is not a partner at skadden.