Michael B. Mukasey served as the 81st Attorney General of the United States from November 2007 to January 2009. He oversaw all activities of the Justice Department, and advised on critical issues of domestic and international law.
He was eminently well suited for the role, following an illustrious career in law. Judge Mukasey began his career in private practice after graduating from Yale Law School in 1967, where he was a member of the board of editors of the Yale Law Journal. He served as an Assistant U.S. Attorney for the Southern District of New York, in the Criminal Division, from 1972 to 1976, and as chief of that office’s official corruption unit in 1975-1976.
From 1976 until 1987, when President Reagan nominated him to the bench, he practiced at Patterson, Belknap, Webb &Tyler, where he litigated cases in state, federal and arbitral tribunals.
From 1988 to 2006, he served as a district judge in the United States District Court for the Southern District of New York, becoming chief judge in 2000. While on the bench, he handled numerous cases, including the trial of Omar Abdel Rahman, the so-called “blind sheikh,” and nine co-defendants, convicted of a wide-ranging conspiracy that included the 1993 bombing of the World Trade Center and a later plot to blow up New York landmarks, including the Holland and Lincoln Tunnels, the United Nations, and the FBI’s New York headquarters in lower Manhattan; and the case of Jose Padilla, arrested on a material witness warrant and believed to have returned to the United States to detonate a high-radiation bomb and to blow up apartment buildings by sealing apartments, filling them with gas, and then detonating them.
Since February 2009, Judge Mukasey has been a partner in the New York firm of Debevoise & Plimpton, where he is a member of the litigation department and focuses his practice primarily on internal investigations, independent board reviews and corporate governance.
The honors he has received include the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence and an honorary Doctorate of Laws from Brooklyn Law School.
I am delighted and honored to interview Judge Mukasey for FSM. It is also daunting after reading his caveat in a recent column in the Wall Street Journal in which he reviews and dissects two books on the war on terror:
“What gets bypassed in the process are two basic rules of both journalism and history: that if you ask the wrong questions you get the wrong answers, and that if you don't look for facts you won't find them.”
Ruth King: Jose Padilla also known as Abdullah al-Muhajir after he converted to Islam, was arrested on a material witness warrant and initially slated for a civil trial. In 2003 you displayed independence and a willingness to defy President Bush by ruling that Padilla had rights to a lawyer. During your confirmation hearings you were praised by liberals for this action. Could you tell us what happened and how he came to be tried and convicted in Florida?
Michael B. Mukasey: The Jose Padilla case took several twists and turns before he was ultimately tried. The case came to me initially as an application by the government for a material witness warrant to apprehend Padilla when he arrived in Chicago from abroad. The material witness statute permits the government, or a defendant, to apply to a court to arrest someone who has information about a crime the government is investigating or prosecuting, if the evidence suggests that that person would not be available to testify if allowed to remain free. The information submitted about Padilla indicated sufficient connection between him and al Qaeda to conclude both that he had information and that he would not be available of his own free will if permitted to remain at large.
That law requires the person detained to be brought before a court, assigned a lawyer if he cannot afford one, and get a hearing on the propriety of continuing to detain him until whatever evidence he has can be obtained in a form useful to the party that asked for the warrant. It bears mention that the law allows a warrant to be issued at the request of a defendant to detain a witness the defendant would need at trial if it appears that that witness would not willingly make himself available.
In any event, the law is not a preventive detention statute, and I made it clear to the government lawyers that they would have to put Padilla before a grand jury to obtain his testimony, if he was willing to provide it, charge him with some crime that would warrant his continued detention, or let him go. Those were the options. After a couple of weeks, I imposed a deadline. On a Sunday, just before the deadline ran out, the U.S. Attorney told me that the President had designated Padilla an unlawful enemy combatant and directed that he be transferred to military custody. Military authorities were on their way to pick him up, and therefore the government wanted to cancel the material witness warrant so that the military could take custody of Padilla.
I pointed out that Padilla’s lawyer no doubt would want to challenge that, and was told that the government did not dispute that Padilla had the right to file a habeas corpus petition challenging his continued detention. When the deadline ran a day later, the parties appeared in court but Padilla was no longer in the jurisdiction; he had been transferred to the Navy brig at Charleston, South Carolina. The government had conceded that Padilla could file a habeas corpus petition, and I ruled that although the President had authority to detain Padilla as an unlawful enemy combatant, the only practical way for him to do that was to consult with a lawyer, only about the limited issues on a habeas petition, which would simply involve a challenge to the lawfulness of his detention. The government objected, and took an appeal. The Court of Appeals ruled 2-1 that the President did not have authority to detain Padilla as an unlawful combatant. When the case got to the Supreme Court, they held that Padilla had to file his petition in the jurisdiction where he was then detained, which was South Carolina.
Padilla filed his petition in South Carolina, where the District Court agreed with him that the President had no authority to detain him, but the Fourth Circuit reversed, finding the President did have that authority, as I had held.
Before the case got to the Supreme Court, the government decided to charge Padilla in a civilian court with plotting to blow up apartments by filling them with gas and then using a cell phone as a detonator. He was tried in Florida on that charge, convicted, and sentenced to a long term of imprisonment.
RK: In the aforementioned Wall Street Journal review you state : “Finally, consider Mr. Bergen's assertion that "mainstream Islam" is rejecting al Qaeda and that the 9/11 attack was "un-Islamic," a judgment that fails twice over, including once on his own evidence. If by "mainstream Islam" Mr. Bergen means moderate Islam, there is no such thing. There are many moderate Muslims, but there is simply no body of doctrine within Islam that provides a principled basis for condemning the 9/11 attacks. There are many devout Muslims in America who practice a rigid form of Islam. How can one be alert to those citizens who adhere to strict Koranic doctrine without impinging on their liberty and rights?
MBM: I think citizens are free to adhere to whatever doctrine they wish, be it rigid Islam or anything else. I think what Americans must practice is what the intel and military folks call situational awareness. When someone advocates a point of view that could have a negative effect on our security, or when someone urges a particular public policy that could affect our security or the content of our culture, it is perfectly acceptable to make ourselves aware of the belief system that motivates that person, and to consider whatever evidence may bear on that, including who that person's close associates are and who that person has associated with in the past. We are not under any obligation to change the culture of this country to make it more congenial to people who do not find it so, or to suffer in silence their attempts to impose cultural changes on us.
RK:The House just passed an extension of the Patriot Act. Conservatives think the law invades individual privacy. Liberals say it infringes on civil liberties. Any thoughts on that? Do you think any provisions of the Patriot Act are critical to national security ?
MBM: The Patriot Act has generated a lot of controversy, but it consists principally of authorities for the Justice Department to use in terrorism cases investigative tools that it can use in other cases as well. So for example, many criminals use successive cell phones, discarding them periodically so as to avoid surveillance. The Patriot Act allows the government to obtain what are called roving wiretaps, so they can overhear the conversations of a particular subject regardless of which telephone he uses. That authority was available in narcotics cases; the Patriot Act simply extended it to terrorism cases. The business records provision allows the government to apply to a court to obtain business records maintained by a third party in connection with a terrorist investigation. So, for example, the government could obtain records of the telephone company showing which long-distance calls had been placed from a particular telephone. These are records already in the hands of the telephone company, so there is only a weak privacy interest, if any, that is implicated. These provisions are vital to investigating the kinds of threats we face now, which involve smaller plots by individuals or loosely organized groups.
RK:Recently you advocated that the Mujahadin-e-Khalq be removed from the State Departments’ list of terrorist organizations. That made some of your critics go viral. Tell us about that.
MBM: Muhadin e Khalq – This Iranian group, known as MEK, which now opposes the mullahs, was placed on the State Department’s list of foreign terrorist organizations based on activities it had engaged in when the Shah was still in power in the 1970’s, in part because some in the State Department thought it would help us engage with Iran. It was kept on during the Bush administration because some believed that if MEK were taken off the list the Iranians would retaliate by sending IED’s and other equipment to insurgents in Iraq, which of course the Iranians are doing anyway. People in the intelligence community concede that MEK has not engaged in any terrorist activities for decades, that it wishes to overthrow the current Iranian regime and replace it with one that would be not only secular but also democratic and nuclear-free. There are now some 3400 members of MEK who are living in a settlement in Iraq not far from the Iranian border who are being harassed by Iranian thugs and by Iraqi authorities who are under the influence of Iran. MEK cannot raise money or travel in the United States, and the Iranians use the terrorist listing to confirm their own persecution of members of the group, many of whom have been executed by the regime. There is no good reason to maintain MEK on the list, and removing it would not only help the people in that settlement, known as Ashraf, but would also send a signal to the Iranian government that we are prepared to side with people who oppose the regime.
RK: What do you think about the fact thatthe Obama administration has fired an unprecedented number of Inspectors General who serve to monitor government agencies?
MBM: Inspectors General are supposed to function independent of political influence, and report to Congress. Their independence should be respected.
RK:And finally a few questions about Eric Holder. In Jennifer Rubin’s recent interview you characterize your successor’s conduct as “amazing.”
Can you comment on the DOJ’shandling of the New Black Panther party, not only their controversial decision not to prosecute what seemed a clear case of voter intimidation, but the charges of racism within the department that accompanied it?
What do you think of the Holder Justice Department on national security?
What about his challenge to Arizona’s immigration law?
MBM: You have asked me a series of questions related to Department of Justice issues, and I am happy to answer them, but I want to make clear that whatever differences I have with the current administration relating to such issues, they are differences over policy for reasons that I have explained at various times; they are not personal issues relating to my successor.
That said, I think the handling of the New Black Panther Party case is something that seems deeply disturbing, and warrants either a full explanation, or a serious outside inquiry, possibly from Congress, or both. Two members of the New Black Panther party were seen intimidating voters outside a poll in Philadelphia during the 2008 election, and a case against them resulted in a decision for the government, which the defendants did not contest. A witness to the intimidation who had served as a highly civil rights lawyer at the Justice Department in the 1960’s, Bartle Bull, said that the defendants’ conduct was the most blatant kind of intimidation he had ever seen, including what he witnessed in Mississippi in the 1960’s.
Despite that, and even though the government had already won the case, the Justice Department voluntarily discontinued the case after the new administration took over.
As I said, I have policy differences with my successor. As to national security, I think that some sound decisions have been made, including continuing to protect the government’s state secrets privilege so that sensitive information is not disclosed publicly, and continuing to use the authorities provided under the Patriot Act and the Foreign Intelligence Surveillance Act, as amended. However, I think it is a mistake to keep articulating support for the proposition that unlawful enemy combatants should be tried in civilian courts, which I think are ill suited to the task and which present considerable security risks for us and opportunities for terrorists and those allied with them.
I note that Guantanamo, a military facility, remains open; it should.
So far as the Department’s challenge to the Arizona statute, I see no inconsistency between the Arizona law and federal law, and believe that the Arizona statute simply recognizes as unlawful behavior that is already unlawful under federal law – namely, being in the country unlawfully.
Whatever differences I have with Eric Holder concern policy, and I think he is capable of implementing sound policies if permitted by the administration to do so.
RK: Thank you very much for taking the time for this interview. In FSM's opinion you were a superb Attorney General . You restored our faith in American jurisprudence and justice. We wish you continued good luck and success.
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