Troubling aspects of Michael Mukasey's record.
The lead editorial of the New York Times today raises some troubling aspects of Michael Mukasey's record which Congress should question very closely before confirming him as Attorney General. There is another reason why Congress should question him closely as well -- the Justice Department is racked by political prosecutions when that agency is supposed to maintain a distance from the President.
Specifically, Mukasey has engaged in judicial activism in which he promoted George Bush's radical reinterpretation of the Constitution and promoted their novel legal theories about the Constitution and civil liberties. Specifically, he ruled that Jose Padilla could be detained indefinitely as an enemy combatant; that ruling was overruled. He lashed out at critics for denouncing the Patriot Act's provision allowing the government to snoop on libraries to see what people were reading. He also has advocated the formation of separate courts outside the judicial system to try what he calls "enemy combatants."
All of this means that he is not the consensus candidate that Bush was touting him as. Instead, all this raises the question of whether he can exercise proper independence from the Bush administration, especially at this critical period of the Justice Department's existence.
The main concern here is the Justice Department as an institution. Do we want it to exist independently of the President, and have the ability to apply the law in a way that is recognized as valid precedent? Or do we want it simply as another wing of the White House, whose purpose is solely to prosecute the misdeeds of the party that is not in power?
There is another question that has to be answered as well -- one of the main problems that 9/11 exposed was the total lack of communication between the various governmental agencies. One of the key challenges that Judge Mukasey will have to face is the ability to bring all of the different agencies together and help develop a unified plan to prosecute and convict terror suspects. That will also involve coordinating with law enforcement efforts by our allies as well.
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