"George Bush Goes for Consensus in Naming Michael Mukasey for Justice," reads the minutes-old headline at Le Monde. It spins with the Associate Press story that surmises, "Mukasey appears unlikely to face a bruising confirmation battle in the Democratic-controlled Senate."
No quibbling about the credentials of Mukasey (left), who presided over high-profile terrorism trials while a Chief Judge at the U.S. District Court in Manhattan, to serve as Attorney General of the United States. Still, there's good reason for Senators to take a hard look at the nomination.
Fresh in mind is the U.S. citizen whom the U.S. executive kept in "enemy combatant" detention for years before permitting him to stand trial in federal court in Miami. Prosecutors set out the case against José Padilla in an open and public proceeding, without resort to classified evidence -- and jurors promptly returned the verdict of guilty that likely will permit his incarceration for life. Putting to one side the difficulties presented to the defense by the taint of prior detention, many saw the result as proof positive that persons suspected of terrorist acts can and should be handled through the justice system in place before attacks on Washington and New York set the stage for efforts to establish a newfangled system. (See here, for example; I'd written as much here before the verdict.)
The administration's called this new mechanism "military commissions," though, as the Supreme Court recognized in Hamdan v. Rumsfeld, in many respects -- respects particularly menacing to the U.S. tradition of fundamental fairness in the substance and procedure of criminal law -- the system deviates from past commissions. Despite Congress' near-rubberstamp of the system in the post-Hamdan Military Commissions Act, the newfangled system continues to falter: the latest halt occurred because military judges concluded that the government was asking them to act illegally.
Against this backdrop, consider now the op-ed that Mukasey published in the Wall Street Journal a week after the close of the Padilla case. In stark contrast with many other commentators, Mukasey saw the result not as an affirmation of existing practice, but rather as evidence that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
To solve the problem that he maintains is at hand, Mukasey commends his readers, and Congress, to give "careful scrutiny" to proposals for "a new adjudicatory framework" -- the so-called Homeland Security Court or, more often, National Security Court, idea that's been percolating in certain thinktanks for a year or more now. It remained out of the larger public discourse until a recent bipartisan publication in support.
Have yet to read anything in support that demonstrates genuine need for this legal contraption. Proponents tend to ignore statistical analyses -- like this chart in the ABA Journal -- indicating that the Justice Department's scarcely a failure in playing its part in the U.S. antiterrorism campaign. And just as the "new paradigm" proponents of a few years back (some of the same folks now calling for this "new court") acted as if history offered no cautionary lessons, proponents today do not mention difficulty and criticism (some from the pre-9/11 United States) visited upon other countries that've pursued this path. Think of the nonjury Diplock courts in Northern Ireland, or the special terrorism tribunals in places like Egypt, Turkey, and Peru. These examples show that such courts, though established in the name of enhancing security, not infrequently make guarantees of due process, public assumptions of the fairness and legitimacy of judicial decisions, and, in extreme cases, public safety, less secure.
With benefit of hindsight, Mukasey's August op-ed looks much like an audition for the position of next Attorney General. And with more than a year remaining for implementation, the Senate ought to use the confirmation hearings to test whether the nomination's intended to pave the way for a final Bush legacy: for the 1st time in the history of a centuries-old country that's faced many a threat to peace, even to its very existence, establishment of a permanent, due-process-lite National Security Court.