Michael Mukasey's role in the Jose Padilla case

Bush's nominee for attorney general has displayed some impressive qualities of independence and a willingness to defy the president.

Published September 16, 2007 12:15PM (EDT)

(updated below - Update II)

Bill Kristol claims to have learned that George Bush will nominate former federal Judge Michael Mukasey on Monday to be the next Attorney General. CNN now has a similar, though less definitive, report. While Kristol thinks the choice is a good one, many other right-wing Bush supporters do not, based on their hope for more partisan figures (such as Ted Olson), the childish concern that Chuck Schumer and Nan Aron approve of Mukasey, as well as some prior judicial rulings they dislike.

There is no question that Judge Mukasey, a Reagan appointee who served as the Chief Judge for the Southern District of New York before retiring recently, is close to the far right on the judicial spectrum. He undoubtedly holds many legal and political views which most Democrats would find objectionable, perhaps even intolerable. But that will be true of any nominee Bush selects, and it is true of the current Acting Attorney General, Paul Clement, who will remain in place if no nominee is confirmed.

I want to highlight one extremely relevant consideration concerning Judge Mukasey -- the impressive role he played in presiding over the Jose Padilla case in its earliest stages. After Padilla was first detained in April 2002 and declared an "enemy combatant," he was held incommunicado, denied all access to the outside the world, including counsel, and the Bush administration refused to charge him with any crimes. A lawsuit was filed on Padilla's behalf by a New York criminal defense lawyer, Donna Newman, demanding that Padilla be accorded the right to petition for habeas corpus and that, first, he be allowed access to a lawyer. That lawsuit was assigned to Judge Mukasey, which almost certainly made the Bush DOJ happy.

But any such happiness proved to be unwarranted. Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers. He issued these rulings in 2002 and 2003, when virtually nobody was defying the Bush administration on anything, let alone on assertions of executive power to combat the Terrorists. And he made these rulings in the face of what was became the standard Bush claim that unless there was complete acquiescence to all claimed powers by the President, a Terrorist attack would occur and the blood would be on the hands of those who impeded the President.

In demanding that Padilla be denied access to lawyers, the Bush administration argued that access to counsel would destroy its ability to interrogate Padilla, and that "enemy combatants" had no such rights. Mukasey emphatically rejected both contentions, concluding in his first decision (.pdf) in December, 2002:

Even giving substantial weight, as I do, to the President's statement in the June 9 Order that Padilla is "a continuing, present and grave danger to the national security of the United States" and that his detention "is necessary to prevent him from siding with al Qaeda in its efforts to attack the United States," there has been no fact presented to me that shows that the source of that danger is the possibility that Padilla will transmit information to others through his lawyers.

By contrast, Padilla's statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel. On the facts presented in this case, the balance weighs heavily in Padilla's favor.

After Judge Mukasey ordered the Bush administration to allow Padilla access to lawyers, and instructed them to negotiate the terms of that access with the lawyers who filed the lawsuit, the Bush DOJ simply refused to do so. They thereafter demanded that Judge Mukasey re-consider his decision, claiming that they understood his order as a mere "invitation to dialogue" about whether a voluntary agreement could be reached. In March of 2003 -- two weeks before the invasion of Iraq began -- Mukasey refused the re-consideration request, re-affirmed Padilla's right to counsel, and underscored his anger with the administration's failure to comply with his order:

Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further "dialogue" about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so.

Mukasey re-affirmed his ruling while noting that Bush administration "is none too subtle in cautioning this court in going too far in the protection of this detainee's rights, suggesting at one point that permitting Padilla to consult with a lawyer 'risks that plans for future attacks will go undetected.'" Whatever else may be true about him, then, Judge Mukasey was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the Terrorists. And he did so at a time when most people, including those who were natural political opponents of the President, were petrified of doing the same.

Even more perverse than its argument that national security would be jeopardized if Padilla were allowed access to counsel, the Bush administration also argued that it merely need submit "some evidence" to justify Padilla's detention, and that Padilla had no right to review that evidence or have any opportunity to contest it. Judge Mukasey, however, found the "evidence" submitted by the administration (in the form of a Declaration from Pentagon official Michael Mobbs) to be woefully vague and worthless and demanded that they provide more specifics. Once the administration did so, Mukasey ruled that the Due Process Clause entitled Padilla to review the evidence (at least the unclassified portions of it) and to contest its validity:

Padilla must have the opportunity to present evidence that undermines the reliability of the Mobbs Declaration. Furthermore, inasmuch as Padilla has not yet been heard at all on the subject, he is entitled to present evidence that conflicts with what is set forth in the Mobbs Declaration, and to have that evidence considered alongside the Mobbs Declaration. . . .

[U]nless [Padilla] has the opportunity to make a submission, this court cannot do what the applicable statutes and the Due Process Clause require it to do: confirm what frankly appears likely from the Mobbs Declaration but cannot be certain if based only on the Mobbs Declaration -- that Padilla's detention is not arbitrary, and that, because his detention is not arbitrary, the President is exercising a power vouchsafed to him by the Constitution. As set forth in the Opinion, because the only practicable way to present evidence, if he has any and chooses to do so, is through counsel, he must be permitted to consult with counsel.

Mukasey thus rejected the notion that Padilla's detention could be justified based on the unchecked, unchallengeable, secret assertions of the President.

Mukasey's actions were notable because they came at a time when there were virtually no other limits being placed on the President's power. Stalwart rule of law defender Bruce Fein, in a December 2002 Op-Ed in The Washington Times, called Mukasey's decision a "narrow, prudent, and impeccable decision" and said it "sets a standard to which the wise and honest jurist should repair."

Judge Mukasey's respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as "enemy combatants," and that they need not be charged with any crimes. He thus rejected Padilla's claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

That ruling by Mukasey was resoundingly reversed by the Second Circuit on appeal (.pdf), which held that "the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." Mukasey's ruling that Bush has the power to detain American citizens as "enemy combatants" was also rejected by the Bush43-appointed federal judge in South Carolina (.pdf) to whom the Supreme Court transferred the Padilla case (though Mukasey's ruling was adopted by a far right Fourth Circuit panel on appeal).

It was that question -- whether the President can constitutionally detain U.S. citizens arrested on U.S. soil as "enemy combatants" -- which the Supreme Court was set to resolve when the administration finally charged Padilla with crimes, transferred him to a criminal court, and argued (successfully) that the case was therefore moot, thus leaving standing the Fourth Circuit ruling that the President possesses this power. If Mukasey is the nominee, he should certainly be questioned aggressively about whether he believes that the President does have this authority and whether he would intend as Attorney General to defend that authority if it were exercised again.

But it is true is that Mukasey's history -- unlike that of, say, Ted Olson -- has been that of an independent-minded (albeit quite conservative) judge, not a political hack at the center of partisan wars. He has -- at least at times -- displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power.

Mukasey is very smart and independent, not part of the Bush political circle, and -- at least compared to the array of nightmarish alternatives -- it is hard to see him becoming a subservient tool of the White House. Far and away, independence from the White House is the attribute most needed for the next Attorney General -- someone who will enforce the rule of law even when it undermines the political interests, or even the legal interests, of top Bush officials.

None of this is to say that Mukasey should be confirmed as Attorney General if, as appears to be the case, he is the nominee. There is a long record of rulings that very well may constitute potent grounds for opposing him. He published a recent Op-Ed in the Wall St. Journal on the question of legal rights for terrorist suspects which was reasonable on some points though ultimately inconclusive on the central questions. And, as indicated, his ruling that Bush has the power to detain Americans as "enemy combtatants" is unquestionably disturbing. All of that may provide ample ground for opposition.

Nonetheless, in presiding over the Padilla case, Mukasey -- at the height of almost universal deference to the Leader -- displayed a willingness to defy the President and reject assertions of lawless and unconstitutional powers, and to refuse to be intimidated by exploitative claims of the Terrorist threat. That independence and strength of conviction, displayed in 2002 and 2003, is far greater than most political figures are willing to exhibit even today. It is hard to imagine any other potential Bush nominee for Attorney General who has displayed these vital attributes.

UPDATE: Criminal defense lawyer Jeralyn Merritt, a tenacious advocate for defendants' rights, says Mukasey is "independent-minded, extremely experienced and smart," and that although he is "far too supportive of the Patriot Act and too close to Rudy Giuliani for comfort, he doesn't run rough-shod over defendants' rights."

Think Progress notes that Mukasey (like Ted Olson) is an advisor to, and supporter of, the Giuliani campaign (a disturbing fact, though an unsurprising one, given that they are all long-standing members of New York's GOP legal circle). AP is reporting that while some conservatives are supportive, many conservatives are already expressing opposition to Mukasey's nomination.

UPDATE II: Several weeks ago, looseheadprop -- a liberal lawyer at FDL who has practiced for some time in New York -- suggested Judge Mukasey as a "consensus AG pick," noting that "[h]is reputation is that of a man who follows the law, even if he does not agree with it," and that Padilla lawyer Donna Newman said of him: "I admire him greatly." The whole post is quite informative and worth reading.

On a different note, the ACLU of Southern California is hosting a telephone conference call event tomorrow for Constitution Day, where I will speak on the Constitution, be interviewed by Cenk Uygur, and participate in an audience discussion. It begins at 7:00 pm Eastern. Event details and RSVP information can be found here.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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