But it is true is that Mukasey's history -- unlike that of, say, Ted Olson -- has been that of an independent-minded (albeit quite conservative) judge, not a political hack at the center of partisan wars. He has -- at least at times -- displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power.

The question should be asked- whether Mukasey's defiance of the Administration in the Padilla case was due to a dedication to the rule of law, or due to his defense of Judicial Authority. On its face, under current conditions, this should be neither suspicious nor surprising- still though, one has to wonder if Mukasey's motivation was one of pure constitutional ideology or one colored by his own personal investment, as a judge, in Judicial Authority. This distinction is important in the context of determining the stance he might take(in opposition or not) against the Administration as AG. If his actions are reflective of a man serving a role according to Constitutional organization, or instead of a man interpreting his Constitutional role in service of his own glory or ego- that is an important question to ask when weighing his actions in the Padilla case.

Overall though, I share Glenn's impression that this may be the best option available to the Congress.

The issue is manifold: (1) regardless of what you can or can't do to "enemy combatants," what can you do to U.S. citizens detained on U.S. soil?; (2) if, as you say, it's fine to detain enemy combatants with no process, how do those wrongfully accused secure their release; and (3) even if, as you argue, enemy combatants can traditionally be held without process pending the end of hostilities, what do you do where the "hostilities" are not a finite war but a decades-long one which likely would mean life imprisonment?

1) That depends on whether or not they are enemy combatants. I personally don't think anyone picked up on U.S. soil is an enemy combatant unless you can prove they are fighting in a war with the U.S., and I don't think non-state terrorists qualify as anything other than criminals.

2) It is not okay to detain enemy combatants with no process, it is okay to detain them without charging them with crimes. Common Article 3 protections, affirmed by the Supreme Court, provide that they are supposed to get process in front of a regularly constituted court -- in particular, to find out if they are rightfully declared enemy combatants.

3) This just proves that the idea of fighting a "war on terrorism" or a war against non-state actors that cannot convene anyone to sign a treaty ending that war is a fiction.

That's what really needs to be said, and often: That the courts aren't the problem here, it's the weirdo definition of war and what it implies for "enemy combatants". Personally, I think they are just using the status to hold people without charge, and could give a hoot whether or not they are really prisoners of war (in the larger sense -- whether or not entitled to all the protections).

Since this judge believes that all the run-up to this contorted, knotted legal situation is valid, he will go along with contorted solutions to it that are in the worst interests of the American people. Point of fact is that from a coldly logical point of view, your item 3 just proves that this kind of "new kind of war" leads to a logical nightmare -- which is proof that the "new kind of war" definition is flawed, not the court system.

No offense, but the fact that he believes in an independent judiciary that can rule against the government if it so chooses is a very low bar. We agree on that, apparently, since you are admitting that it might be necessary to hold the nose.

So, it's down to the lessor of evils Glenn?

The best we can hope for is someone like Judge Mukasey who would lock a man up for no (known) reason, but would insist on his right to counsel?

Buck Bush and his whole crazy-creeping - 'we may kill you, but we wont eat you' - crowd.

It's like Sen. Kerry this am on Meet the Press: "...we were misled..." and so I'm running for president. bleh. we?

Unless Bush is the Aytollah or king of england he is just a citizen and puts his pants on the same I do. Dang nation, he works for ME... not the other way around. If Judge Mukasey actually believes that a president has the right to lock people up without any say (with or without counsel), Mukasey is not fit to be a citizen, much less to run the Justice department.

aside~ I disagree with Mr. Timber man. It's not for your 'tolerance for reality' that I read your commentaries, Glenn. I mostly read you because of your penchant for not compromising on the art of compromise (ie. The United States of America). Don't let me down.

easy does it,

bah.

I didn't know there were any right wingers still around that really followed the rule of law (as opposed to just claiming to "believe" in the rule of law).

Your incredulousness (as well as Elephantman's spewings)

help illustrate just how far the landscape has shifted. There was a time when being Conservative MEANT being in favor of limited Government, low spending, low taxes, Constitutional originalism and individual freedom. Of course this has always been a matter of lip service but at least self-identified conservatives knew the drill even if they didn't live by it.

Now self-identified Conservatives are at the vanguard of destroying the Constitution and ignoring Freedom. I find it reassuring that there are exceptions to the rule, but while the current authoritarian movement can be called many things, Conservative is not among them.

Accepting the fact that us “libs” will never get a nominee that we don’t have some reservations about and considering I am far from qualified on making legal judgments, I think we should keep in mind that the DOJ is a very large, dysfunctional, and morale deprived organization at his moment in its history. I believe we should look at leadership and management qualifications in addition to a nominee’s legal views.

We don’t need a DOJ run by deputies or lower level managers who allow political views to override legal justice. We need a tough leader who will watch over all aspects of the DOJ and who will select talented people for key posts who will help banish politics from the department and set up safe guards so that there is minimal chance for partisan politics to ever rule the department again. We need a leader who can communicate clearly, concisely and decisively with the media, congress, legal community, the White House and American people.

Let’s not focus too much on the legal although it is certainly extremely important.