Letter to Senate Judiciary Committee Leadership on Mukasey Nomination

October 12, 2007

RE: Nomination of Michael Mukasey for Attorney General

The Honorable Patrick Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510 The Honorable Arlen Specter
Ranking Member
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Chairman Leahy and Ranking Member Specter:

On behalf of the American Civil Liberties Union, a non-partisan organization with over half a million activists and members and 53 affiliates nationwide, we write in regard to the pending nomination of former U.S. District Court Judge Michael Mukasey for Attorney General.

• As you examine the qualifications of Judge Mukasey, we first urge you to consider the confirmation proceedings as an opportunity to address longstanding problems in the policies and administration of the Department of Justice (“DOJ”). The Senate should decline to move forward with the nomination unless and until Judge Mukasey makes specific commitments to renounce administration memoranda justifying torture and other abusive interrogation policies and practices; to turn over documents relating to torture, interrogation, detention and warrantless wiretapping practices; to appoint outside special counsel to investigate such practices; and to take affirmative steps to restore the enforcement practices of the Civil Rights Division.

Secondly, we urge you to review Judge Mukasey’s lengthy record carefully. In particular, we are concerned with his published views (1) on the power of the executive branch to authorize indefinite detention of American citizens as enemy combatants without meaningful judicial oversight; (2) on the power of the federal government to detain witnesses for purely investigative purposes under the material witness statute or otherwise; and (3) his support for procedures outside the existing criminal justice framework to detain or prosecute individuals suspected of terrorism crimes. Though Judge Mukasey’s professional qualifications are clearly substantial, his opinions on these important constitutional issues implicating an individual’s liberty interests deserve the Senate’s close scrutiny.

• The Senate Should Require Judge Mukasey to Commit to a Four-Part Pledge, Under Oath, to Resolve Critical Department of Justice Issues

The ACLU urges the Senate not to move forward with Judge Mukasey’s confirmation until he pledges to take specific steps to restore the rule of law, renounce the use of torture and other abusive interrogation practices, provide the documents necessary for meaningful Congressional oversight over matters that go to the core of American values, and restore the integrity of the Civil Rights Division. Over the past seven years, former Attorneys General John Ashcroft and Alberto Gonzales have overseen the politicization of the DOJ and the erosion of the rule of law. The Senate now has an opportunity to make sure that the next Attorney General will clean up the DOJ. The stakes are too high to settle for anything less than a pledge to take specific steps to put DOJ on the right side of the law, and to restore accountability.

Specifically, the Senate should not move forward on this or any Attorney General nomination unless and until the nominee pledges to take the following four steps in his first thirty days in office:

• Turn over to the Judiciary Committee all documents in DOJ’s possession on the authorization for wiretapping of any phone call in the United States without a warrant, and on the use of national security letters, instead of warrants, to obtain documents anywhere in America.

In 2005, the nation learned that the current administration has repeatedly authorized the National Security Agency to monitor the phone calls and emails of people inside the United States without a warrant and in violation of the Constitution. Authorized in the days after September 11, 2001, this warrantless wiretapping program is part of a broad pattern in which the executive branch used national security as an excuse for encroachment on the privacy and free speech rights of Americans without adequate judicial or Congressional oversight.

Nearly two years after the world first learned that our own government has been tapping our phones and reading our emails and after nine attempts by the Senate Judiciary Committee for information about the NSA spying program, on June 27, 2007, the Committee backed up its tenth request by using its subpoena power to attempt to compel an answer. One day before the July 18 deadline, the White House asked for an extension to produce the documents, claiming it would not have been able to complete the review by the deadline. The Committee granted an extension, asking that documents be turned over by August 20. The Committee denied a further extension and the White House failed to meet the new deadline. The administration’s intransigence clearly justifies contempt proceedings for its failure to respond to the subpoena – though no enforcement action has yet been taken.

While the courts have recognized a limited privilege that would allow the President to protect certain confidential documents and discussions from scrutiny by other branches of government, the privilege is very narrow – even when national security is at issue. Congress has many options at its disposal in attempting to coerce compliance with its subpoena, but the best result would be voluntary compliance by DOJ. The Committee has a legitimate legislative purpose for seeking documents regarding the legal justifications for, and authorization of, the warrantless electronic surveillance programs. Executive privilege does not apply where misconduct has occurred and the warrantless wiretapping program implicates potential violations of law with substantial criminal penalties. Judge Mukasey should acknowledge that the administration has no valid reason for its failure to comply and should pledge to rectify that failure promptly upon taking office.

• Disavow the legality of any interrogation tactic not authorized by the Army Field Manual on Intelligence Interrogations, and commit to providing key documents supporting an illegal interrogation program.

• Disavow the legality of any interrogation tactic not authorized by the Army Field Manual on Intelligence Interrogation -- Despite four major developments in the legal landscape for torture and abuse—DOJ’s rescission of a memorandum on the definition of torture, the enactment of the McCain anti-torture amendment, the Supreme Court’s holding in the Hamdan case that Common Article 3 of the Geneva Conventions applies to detainees in the conflict against al Qaeda, and the enactment of the Military Commissions Act--the Administration still has not acknowledged that abusive interrogation tactics are illegal. Although the Defense Department is now limited to the interrogation tactics authorized by the Army Field Manual on Intelligence Interrogation, the Administration has failed to unambiguously disavow abusive practices. There are credible reports of the continued use of DOJ memoranda stating the legality of specific harsh tactics, and combinations of tactics, that go far beyond the Army Field Manual. There should be no dispute, however, that all of these tactics are illegal, and in fact, may be criminal under the War Crimes Act, the Anti-Torture Act, or general federal criminal statutes. The Senate should insist that Judge Mukasey disavow the legality of any of these tactics before confirmation.

• Provide to the Senate Judiciary Committee all Department of Justice memoranda on detention and interrogation -- During the confirmation hearing for Attorney General Gonzales, members of the Judiciary Committee closely questioned Mr. Gonzales on an August 1, 2002 memorandum that used an overly narrow definition of torture. That memorandum was withdrawn and replaced by DOJ less than a week before the Gonzales confirmation hearing. However, newspapers have reported on other memoranda that also address the legality of the government’s interrogation and detention practices. Although the Administration has acknowledged the existence of these memoranda, none has been provided to the Committee.

The Judiciary Committee cannot exercise meaningful oversight over the Department under Judge Mukasey or any other nominee unless all of these DOJ memoranda are provided to the Committee.

• Disclose key presidential directive on detention and interrogation -- Although it has received far less public attention than the torture memoranda, the presidential directive authorizing the CIA to detain and interrogate persons outside the United States is a critical component of the nation’s torture and detention policies. In response to the ACLU FOIA litigation, the CIA acknowledged the existence of "one document signed by President Bush that pertains to the CIA's authorization to set up detention facilities outside the United States," and identified it as "a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA's authorization to detain terrorists." The CIA described it as consisting of "a 12-page notification memorandum and an attached two-page cover memorandum"; the 12-page notification memorandum is "a memorandum from the President to the members of the [National Security Council] regarding a clandestine intelligence activity" and "the two-page cover memorandum is a transmittal memorandum from the Executive Secretary of the NSC to the Director of the CIA". The CIA told the court in the ACLU FOIA litigation that the CIA is withholding the document from the public because, it says, disclosure would "undermine the cooperative relationships that the United States has developed with its critical partners in the global war on terrorism". At this point, the Senate should no longer agree to let the CIA hide illegal directives behind the cloak of diplomacy.
  

• Appoint an outside special counsel for the investigation and, if appropriate, prosecution of any person who violated federal laws against torture and abuse, or who violated federal laws against wiretapping within the United States without a warrant.

In the absence of an appointed outside special counsel, the only government agency that can prosecute civilians--including contractors, CIA employees, or other civilian government employees--is the Department of Justice. Within the DOJ, the only individuals who can prosecute violations of criminal laws against torture or abuse are either in the Criminal Division or in the various offices of U.S. Attorneys for specific districts around the country. Thus, the only way for civilians to be held responsible for criminal acts is for the Department of Justice to investigate and prosecute.

Although former Attorney General Gonzales specifically refused to appoint an outside special counsel for the investigation and prosecution of violations of federal laws against torture and abuse or for criminal acts associated with the warrantless electronic surveillance of people in the United States, the standard for an appointment has clearly been met. Unless Judge Mukasey commits to appoint an outside special counsel, the Senate will not have any Executive Branch commitment to full accountability and responsibility for criminal wrongdoing by civilians.

Department of Justice regulations require the appointment of an outside special counsel when a three-prong test is met. First, a “criminal investigation of a person or matter [must be] warranted.” 28 C.F.R. 600.1. Second, the “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department.” Id.Third, “under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” Id. If the regulation’s three-prong test is met, then the Attorney General must select a special counsel from outside the government who would have the authority to secure necessary resources for the investigation and prosecution and have full investigatory and prosecutorial powers. Id. at 600.3-600.6.

In the matter of whether civilian government employees violated, or conspired to violate, the Anti-Torture Act or other federal laws against torture or abuse of detainees, the three-prong test for appointing an outside special counsel is clearly met. The extraordinary developments of the past three years--including direct involvement in developing or implementing the torture and cruel treatment policy by the former Attorney General, the Office of Legal Counsel, and the Criminal Division--combined with the ongoing disclosure of additional documents detailing widespread abuse and torture against persons held by the United States, highlight the need for an outside special counsel.

There is an urgent public interest in investigating and prosecuting all civilian government employees alleged to have committed, or conspired to commit, torture or abuse against persons held by the United States because it is the best way to ensure that the government once again complies with the rule of law, and forever stops the use of cruel treatment. A small number of enlisted men and women and a few lower-ranking military officers should not be the only persons prosecuted for crimes, if top officials and other civilians were the ones to authorize deviation from the law.

Given the clear evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an outside special counsel is certainly in the public interest. More than three years after the photos from Abu Ghraib were released to the world, only one civilian has been prosecuted for his role in torture and abuse--and no one from the CIA has been prosecuted.

This disparity between military and civilian prosecutions is even more striking because the CIA Inspector General and the Defense Department referred at least 17 incidents of alleged civilian involvement in torture and abuse to the Department of Justice. Many of those referrals date back to at least June 2004, but more than three years later, the Department of Justice has not brought even a single indictment from any of these referrals.
There is equally compelling evidence that the administration’s program of warrantless surveillance of people in the United States violated the law. The President authorized the NSA to intercept communications without warrants or judicial approval in plain violation of Title III and the Foreign Intelligence Surveillance Act, which together provide the “exclusive means” by which the executive branch can lawfully engage in electronic surveillance within the nation’s borders. 18 U.S.C. § 2511(2)(f). When the NSA Program came to light, government officials essentially admitted that the electronic surveillance the NSA was conducting under the program did not comport with FISA’s requirements. See, e.g., Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Dec. 19, 2005, available at http://www.whitehouse.gov/news/releases/2005/12/
print/20051219-1.html (then-Attorney General Gonzales acknowledging that “the Foreign Intelligence Surveillance Act . . . requires a court order before engaging in this kind of surveillance . . . unless otherwise authorized by statute or by Congress.” Gonzales and Hayden Dec. 19 Press Briefing)(emphasis added); id. (General Michael Hayden admitting that the Program had been used “in lieu of” the procedures specified under FISA.). The two federal judges who have considered the question have both concluded that the NSA’s warrantless surveillance activities violated FISA. See ACLU v. NSA, 493 F.3d 644, 714 (6th Cir. 2007)(Gilman, J., dissenting); ACLU v. NSA, 438 F. Supp.2d 754-775 (E.D. Mich. 2006).

The President’s own statements, supported in public statements by former Attorney General Gonzales, highlight the obvious conflict of interest presented by any possible prosecution by DOJ through regular channels. The appearance of impartiality will be impossible to achieve due to many factors including official DOJ positions on the matter, the aforementioned refusal to provide documents related to surveillance, and public reports of the politicization of appointments within the Department of Justice, including U. S. Attorneys.

Lastly, the public interest arguments for the appointment of special counsel could not be more profound. The investigation and prosecution of government officials for violations of federal laws prohibiting judicially unsupervised surveillance goes to the very heart of the relationship of trust between the nation and its government. Given the acknowledgment that the decisions to violate the law were made at the highest levels of the Executive Branch, only outside counsel will have the requisite independence to assure the public that justice will be served.

At this point, the only way for Judge Mukasey to assure Congress and the American public that the Department of Justice is pursuing justice evenly is to commit to appoint an outside special counsel to address these two areas. It would be an important step to restoring the rule of law.

• Create a blue-ribbon committee of civil rights advisors to focus on restoring the Civil Rights Division to its historic role as the nation's premier and nonpartisan civil rights enforcement agency.

The Department of Justice is the nation’s largest law enforcement agency and the Civil Rights Division can be considered the nation’s largest civil rights legal organization. It should bring its great power and resources to bear in defense of America’s most vulnerable. It wields the authority and resources of the federal government on difficult and complex issues and has helped bring about some of the greatest global advances for civil rights. However, DOJ’s recent record shows it is not living up to its mission. The Civil Rights Division has avoided challenging cases that could yield significant rulings and advance civil rights and has even gone so far as to switch sides from defending the civil rights of minority plaintiffs to opposing them.

A recent example is United States v. New York City School Board. In 1996, the Department of Justice brought suit against the New York City Board of Education, alleging that the Board discriminated against women, African Americans, Hispanics, and Asians by giving civil service tests for these jobs that discriminated against African Americans and Hispanics. While the Board of Education maintained a category of senior building engineers in the New York City schools that is well paid, privileged and overwhelmingly white and male, it failed to recruit African Americans, Hispanics and Asians. In 1999, after several years of litigation, the Department of Justice and the Board of Education entered into a settlement agreement. The agreement gave these individuals permanent civil service status and said that the Department of Justice and the Board of Education would defend the agreement.

When several white male custodians represented by the Center for Individual Rights brought just such a challenge, arguing that the settlement constituted reverse discrimination, the Department of Justice reneged on its promise to defend the individuals it had previously represented. This case was prominently featured in Senate oversight hearings regarding the Civil Rights Division Employment Rights Section earlier this month.

In a case from the Philadelphia Region involving the Southeastern Pennsylvania Transportation Authority (SEPTA), the Department suddenly dropped its support in 2001 for a lawsuit brought by women who claimed the SEPTA running test for police was unfair to female applicants. No other police force in the country uses such a rigorous test because running a mile-and-a-half in the mandated time isn’t directly related to success as a transit police officer. It did, however, have the effect of excluding women from the SEPTA force where 93 percent of women applicants couldn’t pass the running test. Although the Department of Justice pressed its case for four years under the previous administration, the current department leadership abandoned the case.

The Department’s Voting Rights Section is also conducting its business in questionable fashion. Although it has filed more minority language cases under Section 203 than before, it has initiated very few cases under Section 2 of the Voting Rights Act, the main anti-discrimination provision. The Voting Rights Section has only filed seven Section 2 cases in the last five years, and one of them was its first reverse-discrimination complaint on behalf of white voters. Only one case involved black voters and it began under the previous administration. In comparison, fourteen Section 2 lawsuits were filed just during the last two years of the Clinton administration.

Most of the department’s major voting-related actions of the past five years have benefited the Republican Party, including two in Georgia, one in Mississippi and a Texas redistricting plan. Current and former lawyers in the Civil Rights Division said political appointees continually overruled their decisions and exerted inappropriate political influence over voting rights cases. One-third of the Civil Rights Division lawyers have left the department and the remaining lawyers have been barred from making recommendations in major voting rights cases.

In addition, DOJ has abandoned its mission in cases involving abusive police practices. The Department’s Special Litigation Section is charged with handling cases under “police pattern or practice” litigation. There were about 20 police abuse prosecution cases nationwide as of 2006. Very few consent decrees have been entered into under the current administration. While the current administration has entered into several negotiated agreements, there has been little apparent effort to root out and address systemic problems through litigation. From published reports from major cities across the country, we know that individual incidents of police abuse continue to occur here. There is nothing to suggest that the larger, systemic issues that are within the purview of the Special Litigation Section have simply disappeared. Nevertheless, the Special Litigation Section has declined to initiate any new cases in years.

Instead of taking up the cause and defending civil rights, the Department is diverting valuable resources to smaller, easier cases that have little or no impact on defeating nationwide civil rights abuses. We urge the Senate to require Judge Mukasey to pledge to revamp departmental procedures and practices and to restore the DOJ to its appropriate status as the nation’s primary protector of civil rights.

After nearly seven years of misconduct at the Department of Justice, the Senate should not accept anything less than Judge Mukasey’s pledge under oath to take these four key steps promptly if confirmed.

• The Senate Should Consider Judge Mukasey’s Published Views on Indefinite Detention of Americans and on Detention of Material Witnesses for Investigative Purposes

Judge Mukasey served on the bench for nearly twenty years and, therefore, has a long record of published opinions for the Senate to consider. In addition, as a public figure, Judge Mukasey has had other opportunities to weigh in on important public policy issues. There are three areas in which Judge Mukasey’s public words give us concern.

• Indefinite detention of U. S. citizens without charge

In the landmark case of Padilla v. Bush, Judge Mukasey, then the Chief Judge of the Southern District of New York, held that the President was authorized as Commander in Chief and by the Joint Resolution for the Authorization for Use of Military Force [1] to declare anyone — even an American citizen captured on American soil — an “enemy combatant,” and to put that citizen in prison without any charge, trial, or conviction until the end of hostilities. [2]

Judge Mukasey concluded that the President was acting under his “maximum authority” [3] and therefore should be given considerable deference in his decision. This deference requires courts to examine only “whether there is some evidence to support [the President’s] conclusion that [an individual] was … engaged in a mission against the United States on behalf of an enemy with whom the United States is at war, and [ ] whether that evidence has not been entirely mooted by subsequent events.” [4] In Judge Mukasey’s view, the Executive Branch could order that a U.S. citizen be deprived of his or her liberty not on the basis of probable cause, or even reasonable suspicion of unlawful conduct, but merely on the basis of “some evidence” of connection to a terror network.

The standard of review suggested by Judge Mukasey, “some evidence”, was soundly rejected by the Supreme Court in Hamdi v. Rumsfeld. [5] In that case, the Supreme Court employed the balancing test it had articulated in Mathews v. Eldridge [6] to determine the procedures necessary to ensure due process and concluded that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” Hamdi. [7]

We urge the Senate to examine Judge Mukasey’s approach in this case.

• Detention of material witnesses for purely investigative purposes

The federal material witness statute was enacted by Congress in 1984 as a narrow exception to the fundamental principle that an American citizen may not be deprived of liberty without probable cause to believe that he or she has committed a crime . [8] This statute permits the federal government to arrest and detain a witness who is believed to have information material to a criminal proceeding in order to secure his or her testimony in that proceeding. Congress specified, however, that an individual was not to be detained “if the testimony of such witness can adequately be secured by deposition,” [9] making it clear that the statute did not authorize preventive or investigative detention of the material witness.

Following the September 11 attacks, the material witness statute was misused by the Department of Justice to arrest and detain without charge or trial many suspected of links to terrorist activity. Mukasey signed material witness warrants for the arrest and detention of both citizens and non-citizens sought by the Department of Justice. He then closed court hearings of all material witness cases to the press and the public. [10] Some of those detained were held for months; most were never charged with any crime whatsoever thus suggesting many were being held not as witnesses but for purely preventive or investigative purposes. [11] We urge the Senate to question Judge Mukasey on his support for preventive or investigative detention as a means to combat terrorism.

• Support for an alternative system for detaining and prosecuting terrorism-related suspects

Our criminal justice system has successfully tried and convicted terrorists both before and after the September 11 attacks. Judge Mukasey himself presided over the prosecution of ten individuals accused of plotting terrorist attacks in New York City, including Omar Abdel Rahman (the “blind Sheik”). Numerous other terrorists have also been tried and convicted in federal courts, including Zacarias Moussaoui (serving life sentence), Richard Colvin Reid (serving life sentence), Theodore Kaczynski (serving life sentence), Ramzi Yousef (serving life sentence), and Timothy McVeigh (executed), to name only a few. Judge Mukasey has recently argued that this approach to terrorism prosecutions is inadequate in part because it requires too much time and too many resources. [12] He suggests that we consider other options, including a national security court with processes that differ from criminal justice norms, as well as procedures similar to civil commitment.

Judge Mukasey has not specifically outlined which rules and procedures would suffice for terrorism prosecutions – although he has implied that provisions allowing for investigative detention and relaxed evidentiary standards would be among them. We do not have any evidence that existing standards for detention and conviction, and existing rules concerning the admissibility of evidence, are inadequate to incapacitate suspected terrorists. Are we going to try people on the basis of secret evidence? Are we going to deny defendants the right to confront their accusers? Are we going to allow the government to rely on torture or coerced testimony? Given our record of success prosecuting individuals suspected of terrorist activity, any such departure would call into question America’s commitment to fair trials. And if we do those things, how are we going to convince the world that these are fair trials? In the absence of specificity and opportunity for public debate, we risk creating an entirely new system from scratch, in order to fix purported problems that have not even been identified.

We are concerned about the possibility of a system in which people could be held without criminal charge, tried on the basis of secret evidence, denied the right to confront their accusers, and convicted on the basis of evidence obtained through torture or coercion. We already know what happens when we go down this path, in the form of the military commissions system, which the Supreme Court held to be unconstitutional in 2006 and which, even in its new, post-MCA form, continues to be challenged in the courts. Close to five years after the military commissions were first constituted, not a single person has been tried before them. Given this country’s historic – and successful – record of prosecuting terrorism suspects through the civilian criminal justice system, any departure from our traditional standards such as those contemplated above would call into question America’s commitment to due process and fair trials. Judge Mukasey’s views on these important foundational issues will be critical to an understanding of his approach to the post for which he is nominated and we urge the Senate to examine them closely.

Sincerely,

Caroline Fredrickson
Director

Michael W. Macleod-Ball
Chief Legislative and Policy Counsel

Christopher Anders
Legislative Counsel

[1] Authorization for the Use of Military Force, P.L. 107-40, 115 Stat. 224 (2001).

[2] Padilla v. Bush, 233 F. Supp. 2d 564, 606 (S.D.N.Y 2002).

[3] Id. at 607.

[4] Id. at 608 (emphasis added)

[5] Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

[6] Mathews v. Eldridge, 424 U.S. 319 (1976)

[7] 542 U. S. at 533.

[8] 18 U.S.C. § 3144.

[9] Id; see also Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, Human Rights Watch vol. 17, no. 2 at 10-11(June 2005).

[10] Josh Gerstein, “The Real 9/11 Liberties Problem”, The New Republic, April 22, 2002 (available at http://www.tnr.com/doc.mhtml?i=20020422&s=gerstein042202).

[11] See Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, Human Rights Watch vol. 17, no. 2 at 10-11(June 2005).

[12] Michael Mukasey, “Jose Padilla Makes Bad Law”, The Wall Street Journal, August 22, 2007 (available at http://opinionjournal.com/forms/printThis.html?id=110010505).