from NYC's daily neocon rag, the Sun:

http://nysun.com/article/62750

Mukasey May Draw Scrutiny For Role in Secret Detentions
By JOSH GERSTEIN
Staff Reporter of the Sun
September 17, 2007

The widely expected nomination of a former judge, Michael Mukasey, as attorney general could draw fresh scrutiny of his role in authorizing the secret detention of an unknown number of men without criminal charges following the terrorist attacks of September 11, 2001.

The American Civil Liberties Union and Human Rights Watch denounced the detentions as "Kafkaesque." The groups said prosecutors abused the material witness provisions to detain at least 70 men, often when they were suspected of crimes but evidence was lacking. Almost half were never bought before a court or grand jury to testify.

"I'm appalled at the choice," a lawyer involved in one material witness case before Judge Mukasey, Randall Hamud, told The New York Sun yesterday. "In a sealed courtroom that has since been publicized, he kicked my cocounsel out of court. I told him my client had been beat up. He told me, ‘Your client looks okay. File a lawsuit in a couple of years.'"

Mr. Hamud said senators considering Judge Mukasey's nomination should seek out the details of the hearings held behind closed doors in 2001. "The secrecy basically allowed him to run amok," Mr. Hamud said. "They should review every one of those sealed proceeding transcripts and see what this man was doing from the bench. These weren't criminal defendants. They were just witnesses."

The precise number of material witness detentions Judge Mukasey authorized is not publicly known because nearly all court records related to the cases were sealed on order from the judge, who said secrecy was required because the witnesses were to be called before grand juries. "As far as he is concerned … they will remain sealed, forever," Judge Mukasey's secretary told the Washington Post in October 2001.

Judge Mukasey did not respond to interview requests in recent days. In the past, he has reacted angrily to claims that the detentions represented an abuse of power. "Although the court proceedings were sealed because they related to grand jury matters, the lawyers for the witnesses were free to talk about the cases or not, as they chose," Judge Mukasey told Brooklyn Law School graduates in 2002,according to the Post. "Some chose to speak publicly, and others didn't. That is the unremarkable truth behind the breathless half-truths and outright falsehoods you may have heard." [...]

- - Josh Gerstein, the New York Sun, 9/17/07

Maybe in most administrations, a belief that the President can detain even US citizens as enemy combatants on his unchallenged designation, would be seen as troubling merely for the light it shines on mindset, since you wouldn't think that such a scenario might occur anywhere but in theory. But with this administration I don't believe that I'm being paranoid in being concerned that they should at least have the temptation to, say, order mass arrests the morning after the 2008 elections go against them, put as far off as possible. Since the Attorney General would be the official who would carry out such mass arrests, pardon me for insisting on an AG who doesn't come down on the fascist side of the question of mass arrests of whoever the Leader thinks is a threat to his security.

Not that such extreme scenarios should be the main concern. But the more general question of the extent of Presidential powers, especially as these are imagined to not be checked by the other branches, is very likely to take center stage sometime between now and when Bush, hopefully, leaves office in January 2009. They seem determined to play Constitutional hardball, and I don't think we have to settle, nor should we settle, for anyone at all likely, in a Constitutional crisis of the President's making, to be a good German, salute smartly, and pass on orders to the FBI and the US Attys that those of us who don't believe in the Unitary Executive would think illegal. It's great that this Mukasey has shown some willingness to defy the administration from the bench, but has he shown any independence from the ideology of the Federalist Society?

I really don't care, nor should those who hold the majority in the Senate, about the ideological spectrum of candidates for AG that the President would prefer to choose from. Our Senate majority can and should let the President know that he will never get a nominee confirmed who is to the right of Souter. I wouldn't go quite so far as to insist on a particular nominee, such as, say, Janet Reno. But the gorund principle is that the AG is not the AG of the President, he is the AG of the United States. The Senate speaks for the United States in confirming or rejecting the President's nominees, and a good team player, much less a good German, is not what the United States wants in DoJ right now. Maybe if we had a President who has not freqently, by his own admission, acted outside the laws he is sworn to faithfully execute, maybe we should consider his views on who would make a good AG. But he's basically a pre-indicted felon, and you wouldn't let Al Capone have much input into who the next DA of Chicago should be.

Yes, the President might respond to such firmness by making no serious effort to get an AG confirmed, and just letting the presumably good German who is now acting AG continue to hold that post until his term in office ends in January 2009. The President needs to be given a time limit to prevent this maneuver. If he makes no move to offer an acceptable nominee within the limit, the next DoJ appropriation should defund the positions of every one of his political appointees in that department, including the current acting AG. This bill would also, needless to say, set the rules for determining the acting AG so that the President could not dredge up some good German from within the career professionals in DoJ to be acting AG. The rules for determining which civil servant would fill the spot until the President sends up an acceptable nominee for AG would be set to insure that the job goes to someone apolitical.