US Affais: Warranted appointment?

By HILARY LEILA KRIEGER
September 20, 2007 18:51

The nomination of Mukasey for AG signals an endorsement of the judge's court-room stand on terrorism.

4 minute read.



US Affais: Warranted appointment?

michael mukasey 224.88. (photo credit: )

When federal judge Michael Mukasey was selected to hear the case of "Blind Sheikh" Omar Abdel Rahman, accused of plotting the 1993 World Trade Center bombing, he thought long and hard about the assignment. "He knew that by accepting it, he would be putting himself and his family at risk," recalled Haskel Lookstein, the rabbi at Mukasey's Manhattan synagogue. But even though the death threats he received meant being accompanied by a security detail wherever the Mukaseys went, the judge took the case. "It was a tremendous intrusion on their lives," Lookstein said of a burden he saw firsthand, as marshals accompanied Mukasey's wife to work at the Ramaz day school, which Lookstein heads. "They would go out from a building to a bullet-proof car. They lived like that for 10 years." And yet, Lookstein said, "He accepted it because he felt it was his duty as an American and as a judge to preside over this trial." Accepting the case also made him an early arbiter of the thorny legal issues that accompany protecting the population from terrorism, and that arise when striking a balance between the interests of national security and civil rights. His path-breaking work was expanded by later cases he handled dealing with terrorism after September 11. They are decisions and issues that continue to resonate, and will form a central focus of his responsibilities if the Senate approves him as the next US attorney-general. Overzealousness in handling national security issues was a piece of the criticism that ultimately forced Alberto Gonzales to resign as attorney-general last month, though he also faced scandals connected to politicizing the Department of Justice and the firing of US attorneys. US President George W. Bush selected Mukasey as Gonzales's replacement in part because he is a less politically polarizing figure and has the potential to be confirmed without too much partisan opposition. Though some of his perspectives on national security issues have left critics queasy, Mukasey was on the shortlist of consensus choices Democratic New York Senator Chuck Shumer proposed to the White House. BUT BUSH also chose him because of his past stewardship of issues related to national security, paramount for the president. Bush emphasized this when announcing the nomination on Monday. "Some of Judge Mukasey's most important legal experience is in the area of national security," Bush told reporters gathered in the White House Rose Garden. "When the World Trade Center was attacked again, Judge Mukasey quickly reopened his court, even though it was just blocks from Ground Zero. He recognized the importance of maintaining a functioning justice system in the midst of a national emergency. He and other judges in his district worked day and night to ensure that applications for warrants were processed, investigations could proceed, and the rule of law was upheld." Bush also called Mukasey "clear-eyed about the threat our nation faces" and said that he "knows what it takes to fight this war effectively, and he knows how to do it in a manner that is consistent with our laws and our Constitution." Mukasey also referred to these issues in his brief comments following Bush's announcement. "The Department [of Justice] faces challenges vastly different from those it faced when I was an assistant US attorney 35 years ago," Mukasey said. "Less than a week ago, we marked a solemn anniversary that reminds us, if we need reminding, of how different those challenges are. Thirty-five years ago, our foreign adversaries saw widespread devastation as a deterrent; today, our fanatical enemies see it as a divine fulfillment." Yet those challenges have been answered at least in part by Mukasey's own rulings, which have formed a foundation for how the legal system should approach terrorism cases, then still a novelty. His careful and comprehensive rulings led the appellate court which reviewed the Rahman case to conclude: "The Honorable Michael B. Mukasey presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant, and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge." Such praise by an appellate panel is very unusual, noted Andrew McCarthy, a prosecutor in the case which ultimately sent Rahman to life in prison. The fact that the appellate judges were so laudatory - and more importantly, didn't reverse his rulings - was key to establishing his decisions as not simply valid themselves, but as the standard to use in cases of this sort, according to McCarthy. "He took an area which was at the time almost a tabula rosa and gave us some protocols about what to do, and they've really help us," McCarthy said. "Those things that he did really became a model for how other judges presided over these cases and how the government and prosecution charged [suspects]." He referred specifically to the standard for the operation of the principles of free speech and religion in national security cases. Examining earlier jurisprudence, Mukasey found that one can't be punished for one's faith or even espousing a radical political ideology such as jihad, but that these attributes can be considered by the jury when considering the evidence in a terrorism conspiracy case. Still, McCarthy said, one of the immediate effects of Mukasey's efforts was to highlight a situation where "the tools that were available to prosecutors were woefully inadequate and had to be beefed up," leading to a major overhaul of anti-terror legislation in the 1990s which was utilized after September 11. Before that overhaul, McCarthy pointed out, conspiring to carry out a terrorist bombing was considered a minor crime, punishable by up to five years in jail. That meant police and prosecutors were being "punished for succeeding in stopping an attack." But the longer-term effect of what took place in Mukasey's courtroom, McCarthy said, was the start of an argument that still hasn't been resolved: "whether the justice system is really up to this task."


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