New Pick for AG Less Likely To Take Advantage of People Doped Up in Hospital

Today dubya nominated retired federal judge Michael B. Mukasey as Gonzo's successor at the top of the Department of Justice. Most of the articles I have read paint him as a "compromise" choice and a concession to Democrats and all those critical of the Britney Spear's VMA performance that this administration has become (analogy shamelessly stolen from Jezebel).

While I agree that he seems to be less bat shit crazy, I'm not totally sold. As a federal judge, he did seem to adhere to the constitution. He is also the judge that signed the material witness warrant of Joseph Padilla and was involved with his case while it was in New York. At one point during that case, he siding with Padilla over the government.

Since he has retired, however, he has not hesitated to wax poetic (see op ed piece here) about how the war on terror merits different standards for criminal convictions and how our system is not prepared for this on-going struggle. For example, at one point in his op ed, he said:

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.

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. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
(emphasis added).

So it seems that when he did adhere to constitutional standards in his courtroom he did it somewhat begrudgingly. Which, to be sure, is an improvement. But now that he is a position of a policy maker, I don't think he will exhibit the same impartiality he once had as a trial judge. While he seems competent (again, an improvment), I do not believe that he really is a concession to democrats or will significantly change the administration's stance on the war on terror.

No Way José

José Padilla (pronounced padila, not padiya, by personal preference), a U.S. Citizen detained on U.S. soil, has now been in federal custody for about 4 and 1/2 years. He was originally detained in May 2002 on a material witness warrant, as he was accused of having (not formally charged, mind you) helped to plan a dirty bomb attack in the U.S. Two days before a district court was to rule on the validity of Padilla's continued detention under the warrant in June, 2006, Bush and Rummy changed the authority under which he was detained, now labeled him an "enemy combatant," and transferred him to a military brig in South Carolina, giving no notice to his attorneys or family.

This in turn, led to a habeas petition that was eventually turned down on technical grounds by the U.S. Supreme Court in 2004. The petition was rejected in part because it was filed in NY and not South Carolina, where Padilla was actually detained. I imagine they tried to file it in NY, rather than in South Carolina where he was detained so as to avoid the 4th Circuit and take advantage of the 2nd. Before a corrected petition could be ruled on by the Supreme Court (which had been predictably denied by the 4th circuit), U.S. authorities finally formally charged Padilla in November 2005, about 3 and 1/2 years after his initial detention and was transferred to a Miami (civilian) federal prison. He was charged with aiding terrorists and conspiracy to murder US nationals overseas; no mention of a dirty bomb was made. In fact, the indictment itself is pretty vague (indictment from ABC).

Padilla has now petitioned the court to have the case thrown out, saying that he was subjected to torture and abuse including sleep deprivation, threats of execution, exposure to fumes, etc. while in military custody. The U.S. denies the claims. The case is set to go to trial in January 2007, almost almost five years after he was first detained in Chicago.

I know this story has been around for a while, but I think that's why I felt the need to say something about it. Here, a US citizen was detained in the United States for the better part of three years with no charge and was only allowed to meet with his attorneys in March 2004. The government's position was basically that, upon the president's unreviewable determination of status as "enemy combatant" the Bill of Rights do not apply to a U.S. citizen on U.S. soil. I think the government finally got around to charging him with actual crimes just to avoid a showdown with the Supreme Court.

I think it's also interesting to note that a lot of the "alternative interrogation techniques" that Padilla complains of sound an awful lot like the ones that Bush and Cheney have been advocating are legal and useful in Gitmo and the secret CIA detention centers, e.g. "water boarding." And Padilla was being held in military custody during this time period....coincidence? And I don't think the government can argue that the Eighth Amendment doesn't apply in South Carolina.

Hey Congress...how about defunding some these thing, huh?