Revenge Of The Bush DOJ: Mukasey's War Against The Obama Administration

Bush administration Attorney General Michael Mukasey has regularly used platforms on the op-ed pages of major newspapers and as a guest on cable and broadcast news programs to serve as an attack dog seeking to undermine President Obama, his administration, and in particular Attorney General Eric Holder on a wide variety of issues. Most recently, Mukasey has slammed the Obama Justice department for bringing a discrimination lawsuit against a school on behalf of a Muslim teacher who resigned after her request for time off to make hajj, a religious pilgrimage observant Muslims must take, was denied.

Mukasey Targeted DOJ Over Religious Discrimination Suit

Mukasey Said He Would Not Have Brought Suit As AG, Asserted That “You Really Have To Question The Motives” Of Obama DOJ. From the March 28, 2011, edition of Fox News' Fox & Friends:

CARLSON: I posed the question at the end of the last block, what would Michael Mukasey have done as attorney general, and the answer is?

MUKASEY: The answer is Michael Mukasey would not have authorized the bringing of this lawsuit.


MUKASEY: Because the Justice Department has limited resources, and you bring cases that have merit and that are clear winners. This is neither.


CARLSON: I'm thinking to myself, Mr. Mukasey, that school districts right now have no money, and the idea that we would create this sense of entitlement across our nation when everyone is trying to make budget cuts -- it just doesn't seem to add up in my mind.

MUKASEY: It doesn't add up in mine either, and you really have to question the motives of somebody who would press a matter like that at a time like this whether they're interested in simply a matter of religious observance, or whether it's just an attempt to provoke an argument.

CARLSON: And if you were the judge and this came before you, you would do what?

MUKASEY: That's what the summary judgment rules were put there for. [Fox News, Fox & Friends, 3/28/11]

Mukasey: DOJ Case Is A “Real Legal Reach.” The Washington Post reported on March 23, 2011:

The lawsuit, filed in December, may well test the boundaries of how far employers must go to accommodate workers' religious practices - a key issue as the nation grows more multicultural and the Muslim population increases. But it is also raising legal questions. Experts say the government might have difficulty prevailing because the 19-day leave Khan requested goes beyond what courts have considered.

“It sounds like a very dubious judgment and a real legal reach,” said Michael B. Mukasey, who was attorney general in the George W. Bush administration. “The upper reaches of the Justice Department should be calling people to account for this.” [Washington Post, 3/23/11]

This Is Only Mukasey's Latest Attack On Holder And The Obama DOJ

Mukasey's Verdict: “Obama Is Mishandling The War On Terror”

Mukasey: Obama Is “Abandoning The Demands Of Reality To The Attractions Of Fantasy” And Putting America “At Risk.” In an op-ed for The Washington Examiner headline “How Obama is mishandling the War on Terror,” Mukasey wrote of President Obama:

On his first day in office he signed proclamations declaring that detention at Guantanamo would end and that the CIA interrogation program would be abolished, limiting interrogation techniques to those set forth in the Army Field Manual, long available to all including terrorists on the Internet.

He appointed a Homeland Security secretary and an attorney general who rejected both the language and the legal norms of the war on terror.

When an army major screamed “Allahu Akhbar” before murdering 13 soldiers and wounding others, he told the country not to jump to conclusions about the man's motivation. The attorney general announced three days later that the scheduled military trial of the planners of 9/11 would be abandoned in favor of civilian prosecution.

When a terrorist with a concealed bomb concealed tried to blow up an airliner over Detroit on Christmas Day 2009, instead of being treated as a possible intelligence asset he was read his Miranda rights and treated as a criminal defendant.

The administration appears to be abandoning the demands of reality to the attractions of fantasy, and placing the country and its citizens at risk in the process. [Washington Examiner, 2/16/11]

Trying Terror Suspect In Civilian Courts

Mukasey Criticizes Obama's DOJ For Decision To Try Guantanamo Prisoners In Civilian Courts. In an October 19, 2009, op-ed in The Wall Street Journal, Mukasey wrote that “Civilian Courts Are No Place To Try Terrorists,” criticizing the Obama administration for their plan to do so:

The Obama administration has said it intends to try several of the prisoners now detained at Guantanamo Bay in civilian courts in this country. This would include Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, and other detainees allegedly involved. The Justice Department claims that our courts are well suited to the task.

Based on my experience trying such cases, and what I saw as attorney general, they aren't.


Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad--people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without. [Wall Street Journal, 10/19/09]

Mukasey Critical Of DOJ's Charges Against Terror Suspect. In an op-ed in The Washington Post, Mukasey criticized President Obama's Department of Justice for taking what he believed to be a weak stance with regard to the charges filed against suspected terrorist Ali Saleh Kahlah al-Marri:

Ali Saleh Kahlah al-Marri, who by his own account came to this country most recently in 2001 to help organize a second wave of attacks after the Sept. 11 atrocities, received a jail sentence on Oct. 29 that could free him within six years. This again prompts the question of whether it is wise for the administration to cancel the military trials of those held at Guantanamo Bay and charged with planning the Sept. 11 attacks and, instead, to bring them to the United States to be charged anew and tried in civilian courts.


Despite the evidence on the hard drive of Marri's computer, other evidence, and the bold statement in the Justice Department press release that accompanied the indictment that the case “shows our resolve to protect the American people and prosecute alleged terrorists to the full extent of the law,” Marri was charged not with offenses related directly to terrorism, which could have exposed him to life imprisonment, but, rather, with material support offenses. Marri's guilty plea on April 30 was heralded with a Justice Department press release conceding that "[w]ithout a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face," but offering the consolation that “it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.” [Washington Post, 11/6/09, via Nexis]

Mukasey Said Ghailani Trial “Puts A Great Big Target” On New York City. From the January 9, 2010, edition of Fox News' Journal Editorial Report:

GIGOT: You think it's a mistake in general to have brought -- overall, to be bringing the case here in New York.

MUKASEY: It's a huge mistake not only for reasons of security surrounding the trial, but because it puts a great big target on a city that's already a great big target, and that is New York. New York is the biggest stage in the world. It gives that stage to the terrorists on trial. And it also gives that stage to their friends who may want to make a dramatic statement in the form of a terrorist act.

GIGOT: Why do you think the administration is doing this? Because they must understand these risks.

MUKASEY: I don't read minds. I can't hypothesize a good reason they would do it. [Fox News, Journal Editorial Report, 1/9/10]

Mukasey: Civilian Courts Are “Not The Right Place” To Try Terrorists, Holder Is “Making The Wrong Choice.” From an appearance on the March 25, 2010, edition of Fox Business' America's Nightly Scoreboard:

DAVID ASMAN (HOST): Appreciate it. You've had a lot of experience not only as attorney general, but as judge, trying some of these cases. Do civilian courts work at all when trying some of these terrorists?

MUKASEY: At all, yes? Do they work better than alternatives? No. They're not the right place for it, for a whole variety of reasons.

ASMAN: Does that mean they should be totally eliminated? We should just have military courts?

MUKASEY: No, I think we ought to retain flexibility about where the best place to try each particular case is. That ought to be our choice, not a result of some policy decision that puts an iron -- an iron gate between the defendants and any other system.

ASMAN: So your problem with the current administration's position, at least that of Eric Holder, is he's making this blanket judgment rather than being specific about who should and who should not be tried in civilian court?

MUKASEY: Correct, to the extent that's he is being specific about it, he's, I think, making the wrong choice.

ASMAN: Well, let's be specific about who we're talking about, Khalid Shaikh Mohammed, one of the masterminds of 9/11, by his own admission. Also, the man who cut off the head of Daniel Pearl, a former colleague of mine at the “Wall Street Journal.” This is one of the worst of the worst. Does this guy deserve anything close to a civilian trial?

MUKASEY: Forgive me for arguing with the question. But it's not so much a matter of what he deserves, as it is a matter of what law should provide for people who do the kind of thing that he does, for the reasons that he does it, in the way that he does it, with the organization that he does it. We've spent a couple hundred years trying to civilize the rules of war to make it clear that, if you carry arms openly, wear a uniform, follow a recognized chain of command, you don't target civilians, you get treated as a prisoner of war. You're entitled to all the rights of a prisoner of war. If you commit an isolated crime, or even as part of a criminal organization, you get taken to court.

What the government is saying is that if you do none of those things, if you don't follow any rules, if you are a complete barbarian and somebody who has essentially defined himself outside any rules at all, then we've got a better deal for you. You get the same treatment as a guy who held up a 7-Eleven.

ASMAN: Right, or even Charlie Manson.

MUKASEY: Even Charlie Manson.


ASMAN: So what would you tell -- say I was Eric Holder. What would you say? Eric, you've got it wrong? Where specifically do I have it wrong, sir?

MUKASEY: You have it wrong in taking people who -- every rule of organized society and every rule that we've been trying to develop for the last many hundreds of years, taking those people who, on some readings of the law, have no rights at all, but at a bare minimum, have -- should have access only to a military tribunal where there is limited access to evidence, where the rules of evidence are tailored so as to allow receipt of classified information, so as to allow evidence to be presented that might not pass the test of -- the very strict test of the federal court. That is a forum specifically designed for these people. It is wrong to take them from that forum and to put them into a forum where you try ordinary criminals and imperil the information, imperil the location where it is being tried, imperil the judge, the jurors and everybody else.

ASMAN: And the United States of America.

MUKASEY: And the United States of America. [Fox Business, America's Nightly Scoreboard, 3/25/10, via Nexis]

Mukasey Said Ghailani Verdict Was “Less-Than-Satisfactory Outcome” To “Very Unwise And Dangerous Gambit.” Appearing on PBS' NewsHour with Jim Lehrer to respond to Ahmed Ghailani being found guilty of conspiracy for his role in the 1998 U.S. embassy bombings, Mukasey had this exchange:

MICHAEL MUKASEY: It's a less-than-satisfactory outcome to what I think was a very unwise and dangerous gambit, which was to take this prosecution -- this case, we already proved that the courts could be used to try this specific charge.

Two defendants were tried in this case already in the Southern District of New York and convicted a couple of years ago. This man was undercharged, not only in this case, but for other acts as well, including being a document forger, a bombmaker. He was so well trusted that he was the cook to Osama bin Laden.

He was ready to start his military commission trial at Guantanamo. All of that was shut down, so that he could be brought here, and essentially used as an example, as it were, of being able to take somebody from Guantanamo, bring him here, and conduct a trial, even though this trial would in no way be comparable to the trial of KSM. And even that experiment went aground.

RAY SUAREZ (HOST): Please expand, if you would, on your idea that the outcome tells us something about the process. Would your view of a civilian venue for this case be different if he had been convicted on 100 counts, instead of one?

MICHAEL MUKASEY: No, but I think what it does is illustrate the dangers and the -- in this case, the unnecessary dangers, of using a civilian system that excluded a good deal of the evidence against him, obviously didn`t include all of the charges that were pending against him a before military commission.

That was totally unnecessary in this case. I think it also sends a very bad signal to the rest of the world in general and to our adversaries in particular, which is that, if you obey the laws of war -- that is, you carry your arms openly, you wear a uniform, you follow a recognized chain of command, and you don`t target civilians -- then you`re entitled to be treated in a particular way as a prisoner of war.

But if you violate all of those rules, by golly, we`re going to treat you even better. We`re going to give you a full-dress trial. And that, I think, is a very unwise and dangerous message to send. [PBS, NewsHour, 11/18/10, via Nexis]

Detainment Of The Alleged Christmas Day Bomber

In WSJ, Mukasey Highlighted “Gaffes” In Response To Christmas Day Bomber, Wrote There Was Little To “Applaud” In The Official Reaction. In a January 6, 2010, Wall Street Journal op-ed, Mukasey wrote:

There was much to celebrate in the providential combination of an incompetent terrorist and surpassingly brave passengers and crew who saved 288 people aboard Northwest Airlines flight 253 on Christmas Day. There is a lot less to applaud in the official reaction.

Well-deserved mockery has already been heaped on the move-along-folks-nothing-to-see-here tone of the administration's initial pronouncements--from Janet Napolitano's “the system worked,” to President Obama's statement that Umar Farouk Abdulmutallab was an “isolated extremist.” This week brought little improvement.


But it is not so much these gaffes as what they appear to reflect that gives serious cause for concern.


What the gaffes, the almost comically strained avoidance of such direct terms as “war” and “Islamist terrorism,” and the failure to think of Abdulmutallab as a potential source of intelligence rather than simply as a criminal defendant seem to reflect is that some in the executive branch are focused more on not sounding like their predecessors than they are on finding and neutralizing people who believe it is their religious duty to kill us. That's too bad, because the Constitution vests “the executive power”--not some of it, all of it--in the president. He, and those acting at his direction, are responsible for protecting us.

There is much to worry about if they think that the principal challenge of the day is detecting bombs at the airport rather than actively searching out, finding and neutralizing terrorists before they get there. [Wall Street Journal, 1/6/10]

On Fox, Mukasey Criticized Handling Of Abdulmuttalab. From the January 9, 2010, edition of Fox News' Journal Editorial Report:

PAUL GIGOT (HOST): You wrote this week that you don't think that Abdulmutallab should have been charged as he was right after he was arrested on criminal charges in normal criminal court. Why not?

MUKASEY: The principal question is timing not so much where he ultimately wound up, it's secondary. But he should have been taken initially, designated an unlawful enemy combatant or, in the current parlance, an unprivileged....

GIGOT: Belligerent. [Fox News, Journal Editorial Report, 1/9/10, via Nexis]

Mukasey Criticized Obama Administration For “Treat[ing] Abdulmutallab As A Criminal Defendant.” In a Washington Post op-ed, Mukasey wrote:

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite.


The struggle against Islamist extremists is unlike any other war we have fought. Osama bin Laden and those like-minded intend to make plain that our government cannot keep us safe, and have sought our retreat from the Islamic world and our relinquishment of the idea that human rather than their version of divine law must control our activities. This movement is not driven by finite grievances or by poverty. The enemy does not occupy a particular location or have an infrastructure that can be identified and attacked but, rather, lives in many places and purposely hides among civilian populations. The only way to prevail is to gather intelligence on who is doing what where and to take the initiative to stop it.

There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless. [Washington Post, 2/12/10]

Mukasey Accused Holder Of Having A “Pre-9-11 Mindset” for Handling Of Abdulmutallab. Discussing the Obama administration's handling of alleged Christmas Day bomber Umar Farouk Abdulmutallab, Mukasey Had the following exchange on the February 12, 2010, edition of Fox News' On the Record:

GRETA VAN SUSTEREN (HOST): Is it your belief that this administration or this attorney general is weak in his approach and putting us at a greater risk by virtue of the method that's being employed by this administration in this instance?

MR. MUKASEY: I don't want to use inflammatory terms like “weak” and so on. I think it's a mistake in policy. I think you can't think about this as a criminal case. That's the pre-9/11 mind-set. We've prosecuted criminal cases before September 11th. After September 11th, the mind-set should have changed. The paradigm should have changed. And to go back to view each case as a criminal case rather than as a wartime incident in which you're interested in gathering intelligence and then concerning yourself with prosecution later on, that's where I think the error is.

And I don't want to start calling people names or saying they're weak and so on. I just think they've got the wrong policy in place.

MS. VAN SUSTEREN: Well, I guess, I mean, I understand that. I wasn't suggesting to be a flamethrower or anything. But if someone makes a mistake, you know, we could differ in how we think things should be accomplished. But if our difference of opinion, one creates a huge risk for us and one does not, that's very different. And are you saying that the current administration is just doing it in a different way than you would do it? Or this presents a real and imminent problem for our security?

MR. MUKASEY: Well, if you tease this out and apply it in the future, then it's bound to present a risk. Back in the '90s, we had something called the Bojinka plot in which al Qaeda planned to blow up several airliners over the Pacific simultaneously. We don't know that this guy wasn't either test flying a second edition of the Bojinka plot or perhaps one of many. We certainly didn't know that when he landed. And to treat each of these things as a one-off and simply as a prosecution could prove very dangerous. [Fox News, On the Record, 2/12/10, via Nexis]

Closing Guantanamo Bay Prison

Mukasey Criticized Obama's Decision To Close Guantanamo. From the January 9, 2010, edition of Fox News' Journal Editorial Report:

GIGOT The president did say this week that he's no longer going to be sending detainees back to Yemen where, obviously, they have an active al-Qaeda cell. Do you agree with that decision?

MUKASEY: In so far as it goes?



GIGOT: But he's going to send them to Thompson, Illinois, instead. Do you agree with that one?

MUKASEY: No. , and my prediction is they're not going to agree with it either once they see the difference...

GIGOT: The detainees?


MUKASEY: Correct -- between Guantanamo and Thompson, Illinois. I've been to Guantanamo. It compares favorably with most medium security, forget maximum security, medium security federal prisons. It is remote, secure, and humane and when they get over there and find out they're in a freezing facility of cinder block and don't get to play soccer in the sun, you're going to hear a lot of complaints about prison conditions. You're going to see a lot of lawsuits relating to prison conditions. You're going to see a ton of lawsuits addressed to that, habeas petitions and so forth. It's going to be a lawyer's feeding frenzy. [Fox News, Journal Editorial Report, 1/9/10, via Nexis]

Language Supposedly Used To Describe Terrorism

Mukasey Slammed Administration For Language They Supposedly Use To Describe Terrorism. From the January 8, 2010, edition of Fox News' Fox & Friends:

GRETCHEN CARLSON (CO-HOST): But Judge, hasn't the tone of terror changed in the last year since this president came into office? In other words, the CIA is now going to be investigated for all of the things that they did in the way in which they questioned people.

Why in the heck would anyone go out of their way now to question people in a harsh way?

MR. MUKASEY: That's an excellent -- that's an excellent question. And the answer is that nobody would -- or people certainly would be hesitant to do it. I think there are people who are enormously dedicated, who in a crisis would do what they had to do, but they will certainly be a lot more hesitant now than they would have been earlier.

We're not even calling things terrorist attacks. We're calling them man-caused disasters. And we're not involved in a war on terrorism. We're involved in a foreign contingency operation.

In fact, if they had designated this guy for questioning by the military, they would not have called him an unlawful enemy combatant. They would have called him an unprivileged something or other. They've got another term for it. [Fox News, Fox & Friends, 1/8/10, via Nexis]

Investigation Of CIA Operatives For Alleged Torture Of Detainees

Mukasey Reportedly Attacked Holder For Decision To Reinvestigate CIA Operatives For Alleged Torture. From a January 31 Weekly Standard article:

Mukasey, who presided over the trial of the 1993 World Trade Center bombers, is as experienced as any American jurist when it comes to the war on terror. It is therefore significant that he finds Holder's handling of national security matters worrisome. In August 2009, Holder authorized the reinvestigation of CIA operatives who had employed enhanced interrogation techniques on terrorist detainees. It had the feel of a witch hunt: Career prosecutors who investigated the interrogators under the previous administration had concluded there was no basis for a criminal prosecution. A year and a half later, the Holder reinvestigation is still dragging on. “I have to believe that the effect on people involved in national security is devastating,” says Mukasey, “in part because the cases were closed before.” Imagine the impact on a CIA operative who is told, " 'There is no basis for prosecution.' And then someone shows up and says, 'Not so fast.' "

Mukasey, moreover, finds it “amazing” that Holder “conceded he didn't read the [career] prosecutors' memo” that recommended against prosecution. He remarks ruefully that “in a sense that is comforting” to CIA employees that there was not something troubling in the memo. But, of course, it is small consolation that the nation's chief law enforcement officer doesn't bother to read relevant documents before making a decision with long-term policy implications. [Weekly Standard, 1/31/11]

Handling Of “Radical Islam”

Mukasey's Criticism Led Fox's Kilmeade To Say He Has A “Consistent Problem” With Holder. From the January 31, 2011, edition of Fox News' Fox & Friends:

BRIAN KILMEADE: You also have a constant -- consistent problem that's really disturbing you, the way the attorney general, Eric Holder, has done his job.

MUKASEY: Well, I don't know that I'd personalize it that way. I think he's made a number of policy decisions that I really take sharp issue with. Including the way he proposes to treat terrorists whom we capture.


MUKASEY: And the way he proposes to handle it.

KILMEADE: Yes. Here's an example of Attorney General Eric Holder, the man who took your job -- how he wants to handle radical Islam.


ERIC HOLDER, ATTORNEY GENERAL: Radical Islam could have been one of the reasons. There are a variety of reasons why --

UNIDENTIFIED MALE: Was radical Islam one of them?

HOLDER: There are a variety of reasons why people do these things.

UNIDENTIFIED MALE: Are you uncomfortable attributing any of their actions to radical Islam? It sounds like it.

HOLDER: No, I don't want to say anything negative about a religion. In things racial, we have always been and we, I believe, continue to be in too many ways essentially a nation of cowards.

Concern I have about the law that they have passed that I think it has the possibility of leading to racial profiling.

UNIDENTIFIED MALE: Have you read the Arizona law?

HOLDER: I have not had a chance to -- I've glanced at it, I've not read it.


KILMEADE: That states your case, doesn't it?

MUKASEY: Well, those clips are not really reassuring.

KILMEADE: Right. And is that one of the reasons why you want to speak out about it? Are you concerned?

MUKASEY: Well, I -- I don't -- I was approached for an interview. It's not that I'm itching to speak out but I have concerns about the way the Justice Department has approached certain terrorism issues and cases. And in particular, how they've -- they propose to deal with unlawful combatants. Proposing to treat them as if they were ordinary criminals. [Fox News, Fox & Friends, 1/31/11, via Nexis]

Interrogation Restrictions

Mukasey: Release Of DOJ Interrogation Memos Is “Unsound.” In an April 17, 2009, op-ed published in The Wall Street Journal, Mukasey and Michael Hayden, director of the CIA during the Bush administration, criticized President Obama's declassification and release of Justice Department memos. He wrote:

The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.


Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual. [Wall Street Journal, 4/17/09]

New Black Panthers Party Case

Mukasey Reportedly Suggested Holder Was Trying To “Whitewash” Allegations Of Race-Based Justice At DOJ. From a January 31 Weekly Standard article:

With regard to the New Black Panther party controversy, incoming House Judiciary chairman Lamar Smith has dispatched a letter to Holder demanding answers to questions and documents relating to political appointee Julie Fernandes's instructions to civil rights attorneys not to pursue voter-intimidation cases or enforce provisions of federal law designed to prevent fraud against black defendants. Mukasey is flabbergasted that the attorney general would declare in a New York Times interview that in effect “there is nothing to see.” Mukasey says, “I can't see how he would bring himself to say such a thing. There are investigations pending”--by the Justice Department's inspector general and Office of Professional Responsibility. The case against the New Black Panthers for intimidating voters at a Philadelphia precinct in 2008 was already won when Holder's team ordered the charges dropped; famed civil rights attorney Bartle Bull deemed it “the most blatant form of voter intimidation I've ever seen.” Says Mukasey, with a measure of indignation, “It seems to me you don't whitewash such a thing.” [Weekly Standard, 1/31/11]

Charges Against Al-Marri

Mukasey Criticized DOJ For Not Charging Al-Marri With “Offenses Related Directly To Terrorism.” Critical Of DOJ's Charges Against Terror Suspect. In an op-ed in The Washington Post, Mukasey wrote of the charges filed against suspected terrorist Ali Saleh Kahlah al-Marri:

Ali Saleh Kahlah al-Marri, who by his own account came to this country most recently in 2001 to help organize a second wave of attacks after the Sept. 11 atrocities, received a jail sentence on Oct. 29 that could free him within six years. This again prompts the question of whether it is wise for the administration to cancel the military trials of those held at Guantanamo Bay and charged with planning the Sept. 11 attacks and, instead, to bring them to the United States to be charged anew and tried in civilian courts.


Despite the evidence on the hard drive of Marri's computer, other evidence, and the bold statement in the Justice Department press release that accompanied the indictment that the case “shows our resolve to protect the American people and prosecute alleged terrorists to the full extent of the law,” Marri was charged not with offenses related directly to terrorism, which could have exposed him to life imprisonment, but, rather, with material support offenses. Marri's guilty plea on April 30 was heralded with a Justice Department press release conceding that "[w]ithout a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face," but offering the consolation that “it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.” [Washington Post, 11/6/09, via Nexis]

Health Care Reform

Mukasey “Applaud[ed]” Court Decision Finding Health Reform Unconstitutional. From the January 31, 2011, edition of Fox Business' Cavuto:

NEIL CAVUTO, HOST: And at this hour, the federal government couldn't be more stunned or desperate. The White House vowing to appeal but increasingly finding its prospects unappealing. That's because a federal judge in Florida today finding the very core of the health care law itself to be unconstitutional. Says Congress simply went too far.

U.S. district Judge Roger Vinson ruling that the government can't require Americans to buy health insurance. That it is not only a stretch it is illegal. And since the individual mandate can not be severed from the rest of the legislation, that indeed it is the legislation, so that makes the legislation null and void. And toast. For now.

Because this thing is almost definitely going to the Supreme Court. Hard to say how that will go. Here's what we know right now. The single biggest piece of legislation since the new deal is indeed looking sick, very sick.

And my next guest says rightfully so. Former U.S. attorney general Michael Mukasey applauding this decision. Attorney general, thank you for being with us. What do you make of this?

MICHAEL MUKASEY, FMR. U.S. ATTORNEY GENERAL: Well, it is really fairly simple. What the judge said is if this is constitutional, if the government, the federal government can require that people do something, then there is no limiting principle. They could require that you, if you have a certain income that you buy a General Motors car or buy a house with certain level of insurance. I have hypothesized that because inactivity leads to bad health they could issue a pedometer to everybody and make them get up off the couch or face a tax. [Fox Business, Cavuto, 1/31/11, via Nexis]