Questions for Mr. Mukasey

Sunday, September 23, 2007

ATTORNEY GENERAL nominee Michael B. Mukasey has been garnering praise from lawmakers on both sides of the aisle during his visits on Capitol Hill -- and understandably so.

Mr. Mukasey wields an impressive r¿sum¿ and a sterling reputation born of almost two decades as a trial judge on the U.S. District Court for the Southern District of New York, one of the busiest and most high-profile courts in the country. He seems to have grasped the need to rehabilitate the Justice Department's tattered image and accusations that the department has been improperly politicized; he has, for example, embraced the idea of limiting contact between department employees and the White House about ongoing cases. The warm reception for Mr. Mukasey is also due to the view that the retired judge is a "consensus" nominee and less of a provocative, in-your-face pick than some other more politically charged candidates President Bush was considering.

The thawing of hostilities between the White House and the Senate is welcome, even if temporary. It's also encouraging that a clash over the release of documents involving the administration's warrantless wiretapping program and the dismissal of U.S. attorneys apparently will not delay the scheduling of Mr. Mukasey's confirmation hearing.

Still, senators should take seriously their obligation to probe deeply into Mr. Mukasey's background and views, particularly on executive power, the USA Patriot Act, warrantless surveillance, detainee policies and other provisions of the administration's war on terrorism.

During his tenure on the bench, Mr. Mukasey presided over the trial of Omar Abdel Rahman and others convicted in connection with the 1993 bombing of the World Trade Center and was applauded for his steady and fair handling of that difficult and lengthy case. Yet he wrote recently about the dangers of relying on civilian courts to conduct terrorism prosecutions and raised the notion that a secret court should be created to handle them. Senators should question Mr. Mukasey about what he found most troubling about allowing the Rahman case to proceed in open court. They should also insist that Mr. Mukasey provide examples of how he would alter the handling of terrorism trials to better secure sensitive information without encroaching on the rights of defendants.

A related question: This administration has invoked the state secrets doctrine to essentially derail trials that hinge on information with national security implications. How does Mr. Mukasey view the administration's use of this extraordinary tool?

Mr. Mukasey also presided over the initial federal court proceedings against alleged dirty bomber Jose Padilla and affirmed the government's decision to hold him as an enemy combatant even though he was a U.S. citizen -- a ruling reversed on appeal. Mr. Mukasey also insisted that Mr. Padilla be allowed to consult a lawyer. In the immediate aftermath of the Sept. 11, 2001, terrorist attacks, Mr. Mukasey's pronouncements seemed to be a defensible balancing of interests. But would he have signed off on the enemy-combatant designation today? More important, would he, if confirmed, continue to push such a policy?

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