After a Lifetime in Law, a First Day in Court

Attorney General Michael B. Mukasey wears a morning coat and striped pants, in the tradition of government solicitors, for his Supreme Court appearance.
Attorney General Michael B. Mukasey wears a morning coat and striped pants, in the tradition of government solicitors, for his Supreme Court appearance. (By Bill O'Leary -- The Washington Post)
By Carrie Johnson and Robert Barnes
Washington Post Staff Writers
Wednesday, March 26, 2008

Bracing for his first-ever Supreme Court argument, Attorney General Michael B. Mukasey sat through the daily business of the nation's highest court like any other rookie yesterday morning.

The retired federal judge waited patiently, exchanged words with an aide and reviewed his notes while the justices heard another appeal, handed down two opinions and welcomed a half-dozen lawyers from New Jersey into the Supreme Court bar.

Then Mukasey approached the lectern in a morning jacket he had rented, received a brief greeting from Chief Justice John G. Roberts Jr., and uttered the same phrase used by advocates before him: "Mr. Chief Justice, and may it please the court."

As the first occupant of his office to argue before the court since Janet Reno in 1996, Mukasey spoke in a clipped, concise and notably loud tone. He made it through about five minutes of his talking points before the first interruption came, from Roberts, who asked about the meaning of the word "during" in a statute barring people from carrying explosives while they commit a felony.

Mukasey used 19 minutes of his allotted half-hour of argument time to urge the court to reinstate a conviction against Ahmed Ressam, an Algerian apprehended at the U.S.-Canadian border in 1999 with a car full of explosives.

At issue in the "Millennium Bomber" case is the law that mandates a 10-year prison term for carrying explosives during the commission of a felony. The charge could be a potent tool for prosecutors in terrorism cases because it involves a lengthy prison sentence and defines explosives broadly.

An appeals court in San Francisco threw out Ressam's conviction, reasoning that prosecutors had not proved that the explosives count was connected closely enough to an underlying charge that Ressam lied to authorities. But Mukasey argued that Congress did not require prosecutors to show that the explosives charge relates to another felony.

Meddling with lawmakers' intent, Mukasey said, is not the proper role of the court.

Although three justices wondered aloud about the broad language in the law and whether prosecutors might abuse the lengthy prison terms as a bargaining chip in plea negotiations, Justice Anthony M. Kennedy pointed out that it is within the attorney general's power to issue guidelines limiting its application.

"I think I'd be ideally suited to do that," Mukasey responded.

Earlier, Mukasey sat through an argument by Deputy Solicitor General Gregory G. Garre that American citizens who enter Iraq willingly and commit crimes there should not look to U.S. courts for protection. The case involves two naturalized Americans being held near Baghdad at a base the U.S. military says is under the jurisdiction of an international coalition.

That makes them beyond the reach of American courts, Garre said. But Chicago lawyer Joseph Margulies, representing the two men, said Multi-National Force-Iraq is under control of the U.S. military, giving U.S. courts "jurisdiction over that citizen's habeas petition."

In response, Roberts and Justice Antonin Scalia worried that if the most important factor in deciding legal rights is who runs the jail, more than 20,000 detainees in Iraq might decide they have access to U.S. courts. Margulies said that was not his argument.

Others on the court wondered how far the U.S. government was willing to go when it said U.S. citizens could be transferred to another country's custody when it believed they had committed crimes. Could a U.S. citizen be released "to a lynch mob?" Justice John Paul Stevens asked.

Garre replied that "if there were no system of fairness or process," then such questions could reasonably be raised, but Iraqi courts "are functioning under principles that require fundamental standards."

Garre said the court should be guided by its 1948 decision in Hirota v. MacArthur, which said U.S. courts had no power to review decisions of multinational forces. But Justice Ruth Bader Ginsburg pointed out that those seeking to challenge their convictions were Japanese, not U.S. citizens.

Added Justice David H. Souter: "I don't think Hirota is a very strong precedent."

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