NY Times misrepresented Mukasey ruling on Bush's authority to hold detainees

In a September 18 article about Michael B. Mukasey, President Bush's nominee for attorney general, The New York Times stated that Mukasey "has repeatedly spoken out to support the administration's claim to broad powers in pursuing terrorist threats, especially in conducting electronic surveillance of terrorism suspects and in imprisoning them before trial." But Mukasey's ruling on the detention of terrorism suspects went beyond what the Times' Philip Shenon and Benjamin Weiser reported. In the case of Jose Padilla, the "broad powers" the administration claimed, and which Mukasey upheld, were not confined to "imprisoning [him] before trial." As a federal district judge, Mukasey ruled that the government had the legal authority to imprison Padilla, a U.S. citizen arrested within the United States, without trial. While the article later stated Mukasey had "said that Mr. Padilla could be held as an enemy combatant," the article did not spell out what this meant -- that Mukasey upheld the Bush administration's position that Padilla could be held without trial or even charges. Mukasey's decision was overturned by the U.S. Court of Appeals for the Second Circuit.

As Media Matters for America has noted, Padilla was arrested in May 2002 on a material witness warrant; the administration claimed he had been plotting to set off a "dirty bomb." Bush designated Padilla an "enemy combatant" in June 2002, then directed the Defense Department to hold him without charges. Padilla's lawyer filed a habeas corpus petition, which was argued before Mukasey, then the chief judge for the Southern District of New York.

On December 4, 2002, Mukasey ruled that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful." Instead, Mukasey ruled only that Padilla could "submit facts and argument" to challenge whether there was "some evidence" supporting President Bush's finding that he was an "enemy combatant."

The Second Circuit overturned Mukasey's decision on December 18, 2003, holding that the Non Detention Act (18 U.S.C. 4001(a)) prohibited Padilla's detention and that the president had not shown that "Padilla's detention can nonetheless be grounded in the President's inherent constitutional powers." (As Media Matters has noted, the Supreme Court later dismissed the case on technical grounds.) In November 2006, shortly before the Supreme Court was due to decide whether to take Padilla's re-filed case, the government indicted him on federal terrorism-related criminal charges, and transferred him out of military custody. In August 2007, as Media Matters has noted, Padilla was found guilty of those charges after a federal criminal trial.

In addition, a separate September 18 Times article, by reporters Sheryl Gay Stolberg and David M. Herszenhorn, stated that Sens. Patrick Leahy (D-VT) and Charles Schumer (D-NY) "vowed on Monday [September 17] to use [Mukasey's] nomination to extract information from a reluctant White House." But the article did not mention that the request for this information -- which Leahy was quoted in the article saying is "the material we need to ask questions about the former attorney general's conduct, on torture and warrantless wiretapping -- is not new; Leahy's efforts to "extract" this information from the administration did not arise opportunistically from Bush's announcement of his selection of Mukasey, but, rather, long precede that announcement and the announcement of former Attorney General Alberto Gonzales' resignation. Leahy demanded that the administration turn over legal opinions on the CIA's interrogation program soon after the 2006 midterm elections. Likewise, the Senate Judiciary Committee issued, on June 27, subpoenas for documents relating to the warrantless wiretapping program. According to the letter from Leahy that accompanied the subpoenas, the committee had, in the previous 18 months, made "no fewer than nine formal requests" for the information.

From the September 18 New York Times article headlined "A Washington Outsider with Many Sides":

While much of that background suggests he might not have been Mr. Bush's first choice, a review of his record shows that he would defend the administration on the issue that matters most to the president, national security. And the White House seemed confident that he would win confirmation in the Senate, controlled by Democrats.

Mr. Mukasey, 66, now in private practice in Manhattan, has repeatedly spoken out to support the administration's claim to broad powers in pursuing terrorist threats, especially in conducting electronic surveillance of terrorism suspects and in imprisoning them before trial.

As a judge after the Sept. 11 attacks, he ordered the detention of young Muslim men as so-called material witnesses in terrorism cases, decisions that were criticized by immigration lawyers and praised by the Justice Department.

Mr. Mukasey has endorsed provisions of the USA Patriot Act, the law passed by Congress after 9/11 to grant wide new law-enforcement power to the executive branch. The measure has been universally condemned by civil liberties groups.

"That awkward name may very well be the worst thing about the statute," he said in a speech in 2004.

[...]

Andrew G. Patel, a lawyer who represented a defendant in a lengthy trial before Judge Mukasey involving a 1993 conspiracy to blow up New York City landmarks and other crimes, said he had "enormous respect" for the judge despite their frequent disagreements.

"His sense of fairness and due process -- it's more than intellectual," said Mr. Patel, also a member of the team representing Jose Padilla, the American citizen found guilty last month of terrorism conspiracy charges. "It's really down to the genetic level. It's in his DNA."

[...]

In 2002 and 2003, he handled the case brought by the government against Mr. Padilla, an American citizen who was once accused of working with Al Qaeda to build a so-called dirty bomb for use against targets in the United States, a charge that was never proved.

In a ruling that was later reversed by an appeals court, Judge Mukasey said that Mr. Padilla could be held as an enemy combatant, as requested by the Justice Department. He overruled the department on another central issue in the case, however, and ordered that Mr. Padilla be given access to a lawyer.

From the September 18 New York Times article headlined "Democrats Use Confirmation to Press Bush":

The selection of Mr. Mukasey -- a Washington outsider who met Mr. Bush for the first time during an hour-long interview at the White House on Sept. 1 -- seemed to signal that the administration is looking to move past the partisanship that characterized Mr. Gonzales's tenure.

But two Democrats who will have a powerful say over whether Mr. Mukasey gets confirmed -- Senators Patrick J. Leahy of Vermont and Charles E. Schumer of New York -- vowed on Monday to use the nomination to extract information from a reluctant White House.

"All I want is the material we need to ask some questions about the former attorney general's conduct, on torture and warrantless wiretapping, so we can legitimately ask, 'Here's what was done in the past, what will you do?"' Mr. Leahy, the Judiciary Committee chairman, said.