Dispatches from the Culture Wars

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...

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.

Sounds almost refreshing after Gonzales, doesn't it? We'll see what other information comes out about him.