Mukasey urges new approach

The Baltimore Sun

WASHINGTON -- Michael B. Mukasey is best known as the federal judge from New York who presided over one of the nation's first terrorism trials, the prosecution and conviction of Omar Abdel- Rahman, the "blind sheik," and his followers in the 1993 bombing of the World Trade Center.

Civil libertarians often point to that case to buttress their belief that terrorism suspects, including the detainees at the U.S naval base at Guantanamo Bay, Cuba, should be tried in federal court.

But as attorney general, Mukasey is not likely to agree. He has cited his experience to argue that the nation needs a new approach to handle individuals charged as terrorists or enemy combatants.

President Bush announced the selection of Mukasey, 66, yesterday in a Rose Garden ceremony. He urged the Senate to confirm Mukasey promptly as the nation's 81st attorney general, succeeding Alberto R. Gonzales, who resigned last month in the face of withering attacks from Democrats on Capitol Hill.

"Judge Mukasey is clear-eyed about the threat our nation faces," Bush said, with the former jurist by his side. "As a judge and a private lawyer, he's written on matters of constitutional law and national security. He knows what it takes to fight this war effectively."

Two Senate Democrats who will have a powerful say over whether Mukasey gets confirmed - Sens. Patrick J. Leahy of Vermont and Charles E. Schumer of New York - vowed yesterday to use the nomination to pressure the White House into turning over documents the Judiciary Committee has been seeking on the Bush administration's domestic wiretapping program and its treatment of military detainees.

"All I want is the material we need to ask some questions about the former attorney general's conduct on torture and warrantless wiretapping, so we can legitimately ask, 'Here's what was done in the past, what will you do?'" Leahy, the chairman of the Judiciary Committee, which will hold Mukasey's confirmation hearings, told reporters.

If confirmed, Mukasey might have an opportunity to break a logjam between two opposing views: Bush administration lawyers insist that "enemy combatants" have no rights and can be held indefinitely in military prisons, while civil libertarians argue that suspected terrorists and foreign fighters deserve all the rights of the U.S. legal system, including full hearings in federal court.

Writing last month in The Wall Street Journal, Mukasey tentatively endorsed the idea of "a separate national security court staffed by independent, life-tenured judges." He urged Congress to focus on how to "fix a strained and mismatched legal system."

David B. Rivkin Jr., a lawyer in national security cases who has generally supported the Bush administration, said Mukasey's background "gives him tremendous credibility on these issues. He has seen how difficult it is to apply the criminal justice rules to cases like this."

In Abdel-Rahman's conspiracy trial, prosecutors were compelled by federal criminal rules to reveal the "other unindicted co-conspirators," Mukasey wrote. They included Osama bin Laden who, within days, received word in Sudan that U.S. authorities had linked him to the attack.

Neal Katyal, a professor at Georgetown University Law Center who won an important Supreme Court ruling on behalf of the Guantanamo detainees, applauds Mukasey's approach.

"I think Judge Mukasey is right to say we should think about a national security court for a small handful of cases that are not capable of being handled in our current criminal justice system," Katyal said. He said Congress should consider a "system of preventive detention that is overseen by a national security court."

The United States has no accepted legal means for holding and questioning suspected terrorists captured in this country. Under the law, people taken into custody have a right to go before a judge within 48 hours and, if accused of a crime, to have a lawyer. Typically, the lawyer will advise the suspect not to talk to authorities.

The Bush administration sought to evade this rule in the case of Jose Padilla, a Bronx-born Muslim convert who was arrested at Chicago's O'Hare Airport in 2002. Based on overseas intelligence, FBI agents suspected that he was plotting to set off a radioactive "dirty bomb" in this country.

He initially was taken to New York and held as a "material witness." The judge overseeing the case was Mukasey.

The law did not allow prosecutors to hold Padilla indefinitely, and Mukasey ruled that he was entitled to see a lawyer.

At that, the Bush administration sent Padilla to a military brig in South Carolina. That set off a long legal struggle that went to the Supreme Court. In August, Padilla was convicted in a federal court in Miami on lesser terrorism-related charges.

Mukasey defended the administration's move in 2002 to bypass his court. "The government's quandary was real," he wrote last month. "The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible."

This fall, the Supreme Court will again hear an appeal from Guantanamo detainees who are seeking the right to have their cases heard in federal court. Mukasey has made his opposition clear.

"Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court," Mukasey wrote. "If the Supreme Court rules ... that foreigners in U.S. custody enjoy the protection of our Constitution regardless of their place or the circumstances of their apprehension, this bold joke could become a reality."

David G. Savage writes for the Los Angeles Times. The New York Times contributed to this article.

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