An Open Letter to the United States Senate
Michael Mukasey, Questionable Assessments of Executive Power
Received from concerned citizens of ConnecticutDear Senators,
It is critical that the US Attorney General understand and uphold the Constitution in order to be effective. We are concerned that Michael B. Mukasey, the current nominee for US Attorney General, exhibits legally unsound positions regarding Constitutional Law. Upon reviewing the nominee’s credentials, we discovered an op-ed written in the
Wall Street Journal by the nominee in 2004 which defended the USA PATRIOT Act.<1> As you are aware, multiple sections of the USA PATRIOT Act have since been declared unconstitutional in court.<2><3><4><5> Because of the nominee’s defense of the Act, we have analyzed statements in the article, and propose nine follow-up issues for the nominee that we request you to review and consider discussing with the nominee.
(1) Judge Mukasey’s 2004
Wall Street Journal article was entitled "Before attacking the Patriot Act, try reading it" and so it must be inferred that Judge Mukasey had read it. The USA PATRIOT Act has since been declared unconstitutional several times.<6> Does Judge Mukasey now agree with other judges who have declared multiple sections of the Act unconstitutional or does Judge Mukasey agree with President Bush’s declaration that the USA PATRIOT Act was "Constitutional?"<7> Did Judge Mukasey not realize that sections of the Act were unconstitutional upon his reading of the Act?
(2) In what ways will the aforementioned judicial assessments affect his putative function as Attorney General? Specifically, which, if any, unconstitutional sections of the Act does the Judge conclude should not be followed? If President Bush implements executive procedures which have potentially unconstitutional implications, will the nominee recognize this?
(3) Judge Mukasey ridiculed the American Library Association for passing a resolution condemning the USA PATRIOT Act’s section 215. Does Judge Mukasey now believe the American Library Association has a valid point that section 215 could be interpreted as applicable to library records? To what type of records does section 215 apply and would it have been Constitutional for the Attorney General and his agents to seize library records under section 215?
(4) Part of Judge Mukasey’s condemnation of the American Library Association included implicitly associating the organization with communism by condemning them for not condemning Fidel Castro. The Judge continued in his criticism of the organization by stating that the USA PATRIOT Act "requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period." How did the Judge conclude that there were no such subpoenas when there is no independent mechanism to ensure the Justice Department follows the requirement to properly report subpoenas issued under the USA PATRIOT Act? Is the Judge concerned in any way about potential jeopardy to the separation of powers and checks and balances posed by the possibility of undetectable failures to report such subpoenas to Congress? USA PATRIOT Act implementation of National Security Letters has been declared unconstitutional in Doe v. Ashcroft and Doe v. Gonzales. Does the Judge agree with these judgments? Is the Judge aware that in one case, a Connecticut librarian, George Christian, received National Security Letters effectively gagging him from mentioning the receipt of the letters or anything pertaining to the search and seizure? <8> Can the Judge conceive of a circumstance where as Attorney General he could issue a National Security Letter to a librarian?
(5) Judge Mukasey criticized cities such as Berkley, CA and Amherst, MA which at the time had created non-binding resolutions against the Act that called it "unconstitutional." Today, however, eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont) thus far have created non-binding resolutions against the USA PATRIOT Act.<9> Does Judge Mukasey still feel that citizens should not be politically active against the USA PATRIOT Act even though it has been declared unconstitutional four times in federal courts? Will the non-binding resolutions be considered in any way by federal agents working for the Attorney General in the aforementioned states?
(6) Judge Mukasey showed trust in the Bush Administration by writing that rumors "began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide." However, it was subsequently revealed that there were extraordinary renditions and President Bush in a press release admitted that there are secret detention centers.<10> According to President Bush, the CIA has been involved in that effort, but we do not know to what extent the FBI, DHS or the DoD have also been involved. Does Judge Mukasey concede at this time that there are in fact secret detention centers where Muslim Arabs are being held "incommunicado?" Does Judge Mukasey believe that there have been extraordinary renditions? If the President or other agencies requested the nominee’s assistance as AG with such prisoners or soon-to-be prisoners, would he comply?
(7) In a 2006 court case of el-Masri v. Tenet, federal court Judge Ellis dismissed el-Masri’s complaints of extraordinary rendition on the grounds of state secrets privilege.<11> In Judge Ellis’s decision, he wrote that the "state secrets privilege is an evidentiary privilege derived from the President’s constitutional authority over the conduct of this country’s diplomatic and military affairs and therefore belongs exclusively to the Executive Branch." However, the Constitution cannot empower the President to engage in unconstitutional acts. Does Judge Mukasey agree that unconstitutional and/or illegal aspects of programs implemented by the Executive Branch might not be protected by the state secrets privilege? If the nominee encounters illegal programs and is asked to take part in these hypothetical programs, what will be his course of action? If a Congressional committee asks about such programs will the nominee comply with a request for information? Will the nominee comply if the investigation is non-public and classified? Does the nominee believe that FISA would require him to give that information?
(8) On March 9th, 2006, President Bush signed a USA PATRIOT Act reauthorization (HR 3199).<12> In his signing statement, he wrote in part, "The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."<13> Does Judge Mukasey agree that the unitary executive branch can declare exceptions in a signing statement to the passed law? Does Judge Mukasey generally agree with unitary executive theory and allow for signing statements to potentially reinterpret passed law? If so, how will this impact his role as Attorney General?
(9) Judge Mukasey wrote in his article that the government’s "most basic responsibility under the Constitution" is "to provide for the common defense
promote the general Welfare." However, when the Executive branch uses "defense" as a premise to curtail civil liberties, is the defense of the citizen’s rights not contradicted? Does Judge Mukasey agree that it is therefore the responsibility of the Executive branch to provide for the common defense while ensuring civil liberties? Does the nominee believe that the President has the authority to override all civil liberties of the individual by alleging defense of the nation? What civil liberties are inviolate in the face of the President’s desire to claim provision of the common defense and why?
Judge Mukasey’s philosophy on executive authority should be questioned due to his writings in defense of an unconstitutional law. In his writings, we observe what might be ridicule, overweening trust in the Executive branch, and failure to look critically at policy. All of these failures may be due to partisanship. His judgment in the Padilla case that a US citizen could be held without trial and could be declared an enemy combatant seem to support this interpretation of his writings.<14> Finally, due to the new law enacted giving tremendous trust to the position of Attorney General and entrusting the Attorney General with reporting to Congress, the nominee’s writings and rulings should seriously be scrutinized.<15>
We concerned citizens urge Senators to examine closely the nominee’s philosophies on executive powers and civil liberties. At this juncture, it seems imperative to do so.
Sincerely,
Concerned citizens of Connecticut
References
<1> Mukasey, Michael. "The Spirit of Liberty." Wall Street Journal. 10 May 2004.
<2> Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)
<3> Humanitarian Law Project v. Ashcroft, Case No.: CV 03-6107 ABC (MCx)
http://fl1.findlaw.com/news.findlaw.com/cnn/docs/terrorism/hlpash12304ord.pdf
<4> Doe v. Gonzales, 04 Civ. 2614 (VM) (S.D.N.Y. 2007)
http://msl1.mit.edu/furdlog/docs/usgov/2007-09-06_nsldecision.pdf
<5> Brandon Mayfield v. United States of America, Civil No. 04-1427-AA
http://cbs5.com/reference/local_file_269193524
<6> ibid.
<7> Associated Press. "President urges renewal of Patriot Act" Washington/Politics. USA Today. 19 Apr 2004.
http://www.usatoday.com/news/washington/2004-04-17-bush-terrorism_x.htm
<8> Alison Leigh Cowan. "Four Librarians Finally Break Silence in Records Case". N.Y. / Region. The New York Times. 31 May 2006.
http://www.nytimes.com/2006/05/31/nyregion/31library.html?ex=1306728000&en=9f197630a8f4a0a9&ei=5088&partner=rssnyt&emc=rss
<9> Bill of Rights Defense Committee. 18 Oct 2007.
http://www.bordc.org/
<10> White House. Press Releases. "President Discusses Creation of Military Commissions to Try Suspected Terrorists". 06 Sep 2006.
http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html
<11> el-Masri v. Tenet. Case 1:05-cv-01417-TSE-TRJ. 12 May 2006.
http://www.aclu.org/pdfs/safefree/elmasri_order_granting_motion_dismiss_051206.pdf
<12> Public Law No: 109-177. 09 Mar 2006.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ177.109.pdf
<13> John T. Woolley and Gerhard Peters, The American Presidency Project . Santa Barbara, CA: University of California (hosted), Gerhard Peters (database).
http://www.presidency.ucsb.edu/ws/index.php?pid=65326
<14> Padilla v. Bush, 02 Civ. 4445 (MBM).
http://www.nysd.uscourts.gov/rulings/02CV04445.pdf
<15> Public Law No: 110-55. 05 Aug 2007.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ055.110.pdf
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