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Mukasey could shape future terrorism trials

The attorney general nominee has expressed support for a separate national security court to prosecute detainees.

September 18, 2007|David G. Savage | Times Staff Writer

WASHINGTON — Michael B. Mukasey is best known as the federal judge from New York who skillfully presided over one of the nation's first terrorism trials, the prosecution and conviction of Omar Abdel Rahman, the "blind sheik," after the 1993 bombing of the World Trade Center.

Civil libertarians often point to that case to buttress their belief that terrorism suspects -- including the detainees at the Guantanamo Bay naval base in Cuba -- should be tried in federal court.

But as attorney general, Mukasey is not likely to agree. Instead, he has cited his own experience to argue that the nation needs a new approach to handle individuals charged as terrorists or enemy combatants.

If he is confirmed, he may have an opportunity to break a logjam in Washington between two opposing views: Bush administration lawyers insist that "enemy combatants" have no rights and can be held indefinitely in military prisons, and civil libertarians argue that these accused terrorists and foreign fighters deserve all the rights of the U.S. legal system, including full hearings in federal court.

Mukasey, 66, has proposed something in between. Writing in the Wall Street Journal last month, he tentatively endorsed the idea of "a separate national security court staffed by independent, life-tenured judges." He urged Congress to focus on how to "fix a strained and mismatched legal system."

David B. Rivkin Jr., a lawyer in national security cases who has generally supported the Bush administration, says Mukasey's background "gives him tremendous credibility on these issues. He has seen how difficult it is to apply the criminal justice rules to cases like this."

For example, in Abdel Rahman's conspiracy trial, prosecutors were compelled by federal criminal rules to reveal the "other unindicted co-conspirators," Mukasey wrote. They included Osama bin Laden who, within days, received word in Sudan that U.S. authorities had linked him to that attack.

Conservatives are not alone in arguing for a different way of trying accused terrorists. Neal Katyal, who won an important Supreme Court ruling for the Guantanamo detainees, also applauds Mukasey's approach.

"I think Judge Mukasey is right to say we should think about a national security court for a small handful of cases that are not capable of being handled in the current criminal justice system," said Katyal, a professor at Georgetown University Law Center. "His embrace of a national security court does not, in my mind, disqualify him for his position as attorney general. Rather, it is one of many reasons I am so supportive of his nomination."

Despite his own liberal credentials, Katyal said that Congress should consider a "system of preventive detention that is overseen by a national security court."

Currently, the United States has no accepted legal means for holding and questioning terrorist suspects captured within this country. Under the law, persons taken into custody have a right to go before a judge within 48 hours and, if accused of a crime, to have a lawyer. Typically, the lawyer will strongly advise the suspect not to talk to authorities.

The Bush administration sought to evade this rule in the case of Jose Padilla, a Bronx-born Muslim convert who was arrested at Chicago's O'Hare International Airport in 2002. Based on overseas intelligence, FBI agents suspected that he was plotting to set off a radioactive "dirty bomb" in the United States.

Padilla initially was taken to New York and held as a "material witness" in the investigation of Al Qaeda. The judge overseeing the case was Mukasey.

The law did not allow prosecutors to hold Padilla indefinitely, and Mukasey ruled that he was entitled to see a lawyer.

At that, the Bush administration sent Padilla to a military brig in South Carolina. That set off a long legal struggle, including a trip to the Supreme Court. Last month Padilla was convicted in a federal court in Miami on lesser terrorism-related charges.

Mukasey defended the administration's bold move in 2002 to bypass his court.

"The government's quandary was real," he wrote in the Wall Street Journal. "The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible."

This fall, the Supreme Court will again hear an appeal from Guantanamo detainees who are seeking the right to have their cases heard in federal court. Mukasey has already made his opposition clear.

"Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court," he wrote last month "If the Supreme Court rules . . . that foreigners in U.S. custody enjoy the protection of our Constitution regardless of their place or the circumstances of their apprehension, this bold joke could become a reality."





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