Mukasey's Confirmation Will be a Disaster

Chuck Schumer and Dianne Feinstein's endorsement of Michael Mukasey is stunning.

There are more reasons to reject Michael Mukasey's nomination than his evasive answers on waterboarding and unconstitutional expansive views of federal power. Years ago, Michael Mukasey defended the indefensible when his friend, Rudolph Giuliani, then a prosecutor, began subpoenaing defense lawyers before grand juries.

It was one of the more substantial overreaches of the Giuliani years. And it is of particular relevance in today's criminal cases that bear the terrorism label -- a brand of cases where the government's failure rate today is very high. It can be aimed at the country's best defense lawyers and those lawyers that defend detainee, rendition and terrorism cases.

Giuliani attempted, and Mukasey defended, the subpoenaing of defense lawyers to learn about the relationships between defense lawyers and their clients, between defense lawyers and the payer of the defendants' fees -- a move that certainly would discourage most third parties from contributing to a defendant's fee fund.

Giuliani attempted, and Mukasey defended, subpoenaing the attorneys' work records that would show confidential communication between attorney and client.

As a result of the New York State bar's concern over Mr. Giuliani's activities, on the same day that Mr. Mukasey's article appeared, the New York State Bar Association issued a report designed to curb the freedom of federal prosecutors to subpoena attorneys.

Mukasey's defense came three days after the Massachusetts Bar Association roundly condemned issuing such subpoenas as unethical, improper and unconstitutional.

Because subpoenas aimed at defense attorneys create a wedge between client and counsel, and undermine the right to counsel protected by the Sixth Amendment, the Massachusetts bar sought to stop the arbitrary use of the subpoena power by directing all United States attorneys to get judicial approval before subpoenaing a lawyer. Today, if the federal prosecutor fails to comply with that directive, he can be cited for contempt.

Wrongfully compelling defense attorneys to testify against their clients undermines the entire judicial process. Prosecutors can pick their adversaries by using subpoenas to force attorney after attorney off a case. They can stop defendants from hiring top-flight attorneys. Even though defendants have the presumption of innocence, they and their lawyers come under attack even before the case starts.

Giuliani and Mukasey's response was that the monies used to pay lawyer's fees may be monies obtained by criminal means. Seize the money, they say, and let the court set a reasonable fee for the attorneys. But fees from criminally-obtained monies would only be true in a very few cases and the fees the court would set would be court-appointed fees, meaning defendants would get different caliber lawyers.

Today's attorney general could effectively try that procedure in so-called terrorism cases, a title given to an increasingly broad number of criminal cases.

Mukasey has never defended his disagreement with the only two Bar Associations that have spoken to the issue.

Notwithstanding the Bar Association's condemnation, Mr. Mukasey characterized the entire dispute as a fights between Giuliani and defenders of criminals "who baselessly attack him." His hyperbole -- "In their zeal to attack a prosecutor who is far too effective to suit their tastes . . . " - he totally ignored any and all constitutional arguments.

The Democrats on the Senate Judiciary Committee should be ashamed of themselves. A study of Mr. Mukasey's record, his unique obsessive overspending of $27,000,000 (yes, $27 million) to protect him and his family because he feared criminal attacks shows they never should have been enamored of him. Senator Patrick Leahy's smiling self-satisfied face after his private meeting with Mukasey recalls his smiling self-satisfied face after his meeting with now Chief Justice John Roberts.

The Roberts history is instructive. He, along with two other Democrats on the Senate Judiciary Committee, voted for Roberts. Senator Russ Feingold voted for John Roberts, the nominee for Chief Justice, saying "He will not bring an ideological agenda to position" evokes the language of Senator Charles Schumer's rapturous enforcement of Michael Mukasey. That both Senator Feingold and Senator Leahy were totally incorrect, and that Senator Arlen Spector now suggests Roberts may have misled the Senate, confirms the consistent lack of legal homework on the part of the Senate Judiciary Democrats.

Didn't Leahy ask him questions about presidential power, torture, the unheard of $27 million and the subpoenaing of defense lawyers?

Senator Charles Schumer and Senator Dianne Feinstein's switch to Mukasey's side is inexplicable. How they can live with justifying torture both within the United States and in overseas prisons is incomprehensible.

The Senate Judiciary Committee should recall the old adage: "Fool me once, shame on you, fool me twice, shame on me."

Comments

[smzzzz]

Is is really that stunning? The great majority of the "torturees" are Arab so torturing them isn't really that bad to Feinstein and Schumer and the Jewish lobby. Certainly not worth holding up a nomination over.

[BalancedEgg]

There so often seems to be a conflict of interest between who and what the members of congress are being asked to approve and their own pocket linings or favors owed. The power web of DC is quite tightly woven. It is certainly time that the individual state electorates look long and hard at who we are sending to Washington. You can't clean this type of fungus with a broom. A power wash is the more effective method. Any Californian want to answer the question, "What on earth happened to Diane?" She seems to have gotten buried up to her neck in the feeding trough. Not pretty. Not pretty at all.

[EyeballKid]

How many times must we say that the Dems are a disgusting lot in order for the Dems to believe it? Schumer and Feinstein may look to Martin as if their behavior cannot be explained, but from my vantage point, both were probably threatened with a loss of AIPAC funds if they didn't tow the line with Mukasey.

Feinstein is predictable as a DLC neo-con. But Schumer? There might be more to his announcement than reprisals from AIPAC. There might be photographs, there might be blackmail. Something doesn't make sense. Feinstein is beyond hope; but Schumer knows better.

[Sundialsvc4]

Any criminal enterprise needs its "fixer." He's the man who ensures that the criminal activities of "The Operation" are never investigated, and that opponents disappear.

Although we like to suppose that the members of the other Branches of Government will pursue their duties with regard to "checks and balances" ... consider this: what if ALL THREE branches of our government were corrupted at the selfsame time?

This is the scenario that General of the Army (and President) "Ike" Eisenhower foresaw and predicted in 1961. He warned us that it was a danger without precedent in American history, and it is.

In a few short years it can (and for the most part, did...) destroy this Republic and all that it ever stood for.

"One if by land." Is anyone working within the system that our Founders created, to defeat this enemy who lies within OUR OWN HALLS?

[Doofus]

There seems to be some understanding that if
Mukasey opines that water-boarding is torture,
it is therefore criminal to have authorized it.

Prosecutions would follow, reaching to the highest
levels. That would be the disaster, at this point.

As for Schumer & Feinstein, could be their careers
just ended.

[Rule Of Law]

Why did Feinstein cave and go neo-con on this?

http://www.metroactive.com/metro/03.21.07/dianne-feinstein-resigns-0712.html

http://www.bohemian.com/metro/01.24.07/dianne-feinstein-0704.html

Read these links about her connections to the war profiteering of her husband and the committee that oversaw his money making that she sat on!

Then send them to anyone you know who lives in her District. She and Pelosi must be stopped!

[homovivens]

DiFi Fo Fum -- I smell the blood of a tortured one.

The word “Senator” comes from the Latin "senex" meaning "old man" -- from which one can infer sagacity or senility. Feinstein and Schumer (and now I cannot help but include Lieberman when I think of them) seem to have higher loyalties (to what wisdom?) or similar frailties (owing to what dementia?) -- Maybe it’s all that lead in those toy soldiers. They are toys? Aren’t they?

[jhNY]

Feinstein and Schumer's support of Mukasey's nomination is not inexplicable. It is inexcusable,maybe, but not inexplicable. The AIPAC undercurrent pulls strongly on susceptible or compliant politicians, who seemingly will do whatever it takes to keep their heads above water and the right people in place, the constitution or the wellfare of the general public notwithstanding. The facilitation of fascistic logic-chopping in the justice department? Just another day in office for our tireless duo. Remember Schumer's breathless support of freedom-fighting John Bolton's nomination to the UN? 'A vote against Bolton is a vote against Israel', said he at the time.

Giuliani is, among other execrable things, crazy Norman Podhoretz' candidate for Endless Warror in the White House-- and my guess is, comb the archives and you won't find a syllable said against him or his views either by Feinstein or Schumer.

[RickO]

Welcome back to the third world.

[RobinLandseadel]

Being Democratic does not really determine where the resources are allocated, there are other factors. Having Senator Schumer overlooking these affairs not not give me any sense of confidence, particularly considering where he comes from and what it must cost to keep him in line.

'Serving as the senior Senator from New York during the September 11th attacks, Schumer has since written the money laundering provisions of the new antiterrorism bill. He has written legislations making terrorist hoaxes a federal crime. Working with junior New York Senator Hillary Clinton, he wrote legislation permitting the FBI to share information with local law enforcement cutting down investigation time and leading to stronger law enforcement cooperation.'

http://tinyurl.com/ywxsnl

That just makes me feel nervous.

[zizyphus]

Thanks for pointing out yet another reason why Mukasey should not be confirmed as the new Attorney General.

I have been trying to call these two Senators since last week, and I can't get through, as their lines are jammed by other people calling to complain. So I have to be content with emailing them.

[potter]

I am still waiting for someone to answer these questions, "who are the people doing the waterboarding? where did they come from? Who hired them and who trained them?" But my biggest worry is what is going to happen when they leave the services and return home????? Has anyone explored these ideas?

[Jen326]

Mukasey also said in his confirmation hearing that if Justice Department rules wouldn't allow the subpeona of a reporter it wouldn't be a problem because the Justice Department rules are easy to change.

I'm disgusted by Schumer and Feinstein. Feinstein especially because she's been consistently voting in favor of just about everything Bush wants.

With enemies like these, I guess Bush really doesn't need any friends.

[RobinLandseadel]

"Senator Charles Schumer and Senator Dianne Feinstein's switch to Mukasey's side is inexplicable. How they can live with justifying torture both within the United States and in overseas prisons is incomprehensible."

Not inexplicable, not really:

SEN. Dianne Feinstein has resigned from the Military Construction Appropriations subcommittee. As previously and extensively reviewed in these pages, Feinstein was chairperson and ranking member of MILCON for six years, during which time she had a conflict of interest due to her husband Richard C. Blum's ownership of two major defense contractors, who were awarded billions of dollars for military construction projects approved by Feinstein.

http://www.alternet.org/blogs/peek/49970/

[Norge]

Typical of the prevailing sociopathic climate.