Sen. Charles Schumer, who is pushing Mukasey for Attorney General, touted him to Bush for the Supreme Court in 2003.
Mukasey is a decades-long pal of Rudy Giuliani and, like Ted Olson, now serves as a judiciary advisor to Rudy's campaign. Judge Mukasey swore in Rudy Giuliani as Mayor of New York -- twice in two days. One ceremony took place New Year's Eve at Mukasey's apartment.
Mukasey's son, Marc, also a former federal prosecutor, is a partner in Bracewell-Giuliani.
Judge Mukasey presided over the 1993 WTC bombing trial of Sheikh Omar Abdel Rahman and his co-defendants.
He's a firm supporter of the Patriot Act, writing a Wall St. Journal Op-Ed in 2004 that urged, "Before attacking the Patriot Act, try reading it." In it, he mocks the librarians who challenged Section 215, the provision allowing for seizure of library records and he argues in favor of sneak and peek search warrants and notes the legality of roving wiretaps.
When Jose Padilla was initially arrested on a material witness warrant, he presided over those proceedings. He ruled that President Bush had the authority to declare Padilla an enemy combatant but the court had the authority to review the evidence supporting the designation. The Second Circuit later overruled part of his ruling:
[The Appeals court] disagreed with his finding that the president had exclusive authority as commander in chief to arrest and detain, as an enemy combatant, a U.S. citizen on U.S. soil....To the contrary, the court found that, at a minimum, the president would need express congressional authorization for this process and that he had no such authority in this case, either inherently or pursuant to any existing act of Congress.
Mukasey's 102 page decision is here.
On the positive side, over the Government's objections, he ruled Padilla could meet with counsel (not because of any constitutional right to counsel but because he had a habeas claim pending at the time challenging the enemy combatant evidence against him and Mukasey said if he was going to challenge the evidence in court, it was better to do so through a lawyer. He also sharply criticized the Government for its stall tactics in the Padilla case.)
After Jose Padilla's conviction, he wrote this op-ed in the Wall St. Journal on terror trials, suggesting Congress ought to get its act together and consider creating some other kind of tribunal for trying terrorists (besides the federal criminal courts and military commissions.)
He ruled against the Government in the case of former Congressional aide Susan Lindauer who was charged with assisting Iraqi intelligence officials. The Government wanted to force her to take anti-psychotic medications so she would be competent to stand trial. Judge Mukasey said no dice. Among his reasons,
Judge Mukasey also expressed humanitarian concerns about forcing Ms. Lindauer to take medication, which, he said, “necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs.”
In forfeiture cases, when New York seized cars of those arrested for drunk driving, prostitution, drug and gun crimes, Mukasey ordered prompt forfeiture hearings on due process grounds. The city ended up giving back 6,000 cars because it couldn't clear the backlog of cases.
