Sunday, September 16, 2007

New Bush Attorney General :A Step In The Right Direction?

President Bush's prospective nominee for Attorney General to replace Alberto Gonzalez is retired judge Michael Mukasey.

He could be just what the doctor ordered.

Judge Mukasey has had an intimate familiarity with cases involving Islamic terrorism....and spent quite a bit of time getting around-the-clock protection from armed guards as a consequence.

A Reagan appointee to the federal bench in 1987, Mukasey played a major role after the 9/11 attacks, which occurred just a few blocks away from his courthouse. He spent the first few days after the attacks working behind closed doors and seeing some of the first material witnesses detained by the Feds.

Needless to say, this earned Judge Mukasey the ire of people like the ACLU, who said that the material witness cases were an illegal `roundup' and that the witnesses the Feds brought in were `abused' and their legal rights violated.

Mukasey also presided over the beginnings of the Jose Padilla case, before Padilla was declared an enemy combatant and eventually wound up in a different court before being convicted.

Interestingly, Mukasey wrote an opinion piece recently in which he examined how the US had dealt with wartime terrorism in the past, pointed out some of the shortcomings in our current way of doing things and argued for new laws to deal wth Islamic terrorists, based on his experience in the Padilla case. Judge Mukasey, in no uncertain terms feels that we need a major revamping of our system and perhaps new legislation to help the legal system deal with a large scale effort to fight domestic terrorists. Here's a sample:

"The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.{...}

There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.

These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.

Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results."

In short Judge Mukasey seems to understand that the Constitution was never intended to be a suicide pact. No argument from me there.

Mukasey would know about the inherent problems we face, as he's handled terrorist cases for more than a decade.

When he sentenced Sheik Omar Abdel-Rahman, the `blind sheik' to life in prison, Mukasey accused him of trying to spread death "in a scale unseen in this country since the Civil War." He also was the presiding judge who sentenced Ramzy Youseff, the mastermind of the first World Trade Center bombing.

Because of his involvement with these and other high profile cases involving Islamic terrorism, he and his wife were given around-the-clock protection by deputy U.S. marshals for eight years, longer than any other federal judge.

Mukasey is also the judge who swore in Hizzoner, Rudy Giuliani both terms as mayor of New York. Both he and his son, Marc Mukasey, are justice advisers to Rudy Giuliani's presidential campaign. Marc Mukasey also works as an attorney at Giuliani's law firm.

Like Giuliani, Mukasey knows first hand what Islamic terorrism looks, feels and smells like when it happens...a major plus in my way of thinking.

Apparently he also is close to New York Senator Chuck Schumer, who previously recommended Mukasey for the Supreme Court.

Could it be that we're finally getting serious about the fifth column in our midst and are prepared to start doing something about it? Having someone with Mukasey's experience as attorney general could be a major step in doing so.

I'm cautiously optomistic.

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