For A.G., an old hand at terror war
Michael Mukasey, Bush's pick for attorney general, was a tough, conservative judge – with liberal admirers.
Washington — Retired judge Michael Mukasey – President Bush's nominee to be his next attorney general – has for years played a crucial role in the US justice system's struggles to adapt to a new age of terrorism.
This past record may be only of limited use as an indicator of how Mr. Mukasey might act as head of the Department of Justice, note legal experts. Trying cases is very different from directing formulation of antiterror legal policy.
But if nothing else, Mukasey's rulings in this area show a flinty independence, which has won him admirers on both ends of the political spectrum.
"He is fair-minded, and I think [he] is seen as a dedicated lawyer and judge who will help to restore the Department of Justice to serving the nation and its ideals and not the occupant of the White House," says David Rudenstine, dean of the law school at Yeshiva University, from which Mukasey's son graduated.
Mukasey's handling of terrorism cases predates the attacks of Sept. 11, 2001. In the mid-1990s, he presided over the trials of conspirators in a broad plot to blow up New York City landmarks. Among other things, he sentenced the so-called "blind sheikh," Omar Abdel Rahman, to life in prison.
After the 9/11 attacks, Mukasey and other New York judges moved quickly to keep the city's federal judicial system intact – and also saw behind closed doors some of the first material witnesses detained by federal authorities.
Later, Mukasey issued some of the initial rulings in the case of Jose Padilla, a US citizen who was initially accused of a plot to detonate a so-called "dirty bomb" in the United States. While he agreed that the president could designate an American as an enemy combatant and hold him indefinitely, Mukasey also ruled that Mr. Padilla had a right to counsel – a ruling that at the time angered administration officials.
In his rulings and published writings, Mukasey clearly accepts the language that the administration uses to discuss the struggle against Al Qaeda, says Benjamin Wittes, fellow and research director in public law at the Brookings Institution.
In other words, he accepts that the fight is indeed a war – which would indicate that he also accepts the necessity for tough legal measures as part of that battle. But Mukasey does not accept every legal component of that war that the administration wants, says Mr. Wittes.
When the Justice Department asked that the judge reconsider his decision about legal representation for Padilla, Mukasey's response was not compliance, but exasperation. "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel ... it is a ruling," he wrote in response.
Wittes notes that for this and other reasons he believes that, as attorney general, Mukasey would not side with those administration officials who claim the most expansive interpretation of presidential powers. "I think he's an excellent choice," says Wittes.
However, given that the Bush administration has fewer than two years remaining in office, a new attorney general might have little time to put his imprint on the department.
Mukasey has publicly urged the creation of a new model of a national security court to handle such difficult prosecutions as the Padilla case. But such a move would surely be controversial, says Carl Tobias, a law professor at the University of Richmond in Virginia.
"He will have other, higher priorities to pursue, such as settling disputes with Congress over FISA," says Mr. Tobias, referring to the Foreign Intelligence Surveillance Act, which governs US eavesdropping of national security targets.
Lawyers who have had dealings with Mukasey describe him as a serious jurist who was demanding of the lawyers who appeared before him.
"He is extremely bright and hard-working," says Michael Sommer, a former assistant US attorney. Mr. Sommer says the judge never showed any sense of partisanship. "Politics was not an issue in his courtroom," he says.
Senate Democrats initially were positive about the Mukasey nomination. Some felt that the pick was an effort to avoid the heated confirmation battles that might have developed over other potential nominees, such as former Solicitor General Theodore Olson.
"I am open-minded and hopeful that [Mukasey] will satisfy the concerns that I have and other Democrats have, and that he will become a consensus nominee," said Sen. Charles Schumer (D) of New York in remarks to reporters Monday. "But that's not a done deal yet."
•Staff writers Ron Scherer and Gail Russell Chaddock contributed.