President Bush has nominated a former federal judge to replace Alberto Gonzales. Judge Michael Mukasey, likely to be confirmed by the Senate, will be Bush’s new pointman in the legal arena.

According to this CNN article, President Bush said that Mukasey “knows what it takes to fight this war [on terror] effectively”.

Just how has this judge fought the war on terror? Let us remember that an “effective” stance in Bush’s lexicon means “one who sidesteps the Constitution when convenient”. As evidence of Mukasey’s willingness to let the government run amok, Judge Andrew P. Napolitano wrote the following in his book Constitutional Chaos, p. 160-1 (note: the context is the description of the case of José Padilla):

Padilla was also the victim of a federal trial judge failing to perform his constitutional function. Shortly after Padilla was declared an enemy combatant, Padilla’s lawyer brought a habeas corpus petition on Padilla’s behalf, arguing that Padilla had not been lawfully imprisoned. Habeas corpus is the right guaranteed by the Constitution to all prisoners to be brought before a neutral judge by the government official confining the prisoners and to demand legal justification for the confinement.

Judge Michael Mukasey, the federal district judge assigned to hear the Padilla application, caved in to the heightened feras of the American public and ruled that he had no constitutional problem with the president’s self-proclaimed, king-like powers to win the war on terror. The judge upheld the government’s right to grab American citizens on U.S. soil and hold them “for the duration of the hostilities.” The “hostilities”—the global war on terror—may last for years or even decades; depending on how it’s defined, it may never end. Judge Mukasey’s ruling allows the government to hold Padilla in a military brig, without trial, for the rest of his life. To echo Defense Secretary Donald Rumsfeld, the administration is “not interested in trying [Padilla] at the moment… not interested in punishing him at the moment.” But “the moment” could outlast Padilla’s natural life.

Not interested in trying him? Then return him to freedom!

The essence of Judge Mukasey’s ruling was that the government need only to offer “some evidence” that Padilla is an enemy combatant. The judge set the bar so low that hearsay can be characterized as “some evidence.” Hearsay (“I have been told that Padilla had evil plans.”) is not permitted in American trials because it is inherently untrustworthy: it can be mere rumor or innuendo, and it cannot be cross-examined.

In Judge Mukasey’s courtroom, the sole “evidence” against Padilla was a declaration from Pentagon special advisor Michael H. Mobbs, which was merely a regurgitation of facts told to Mr. Mobbs by Department of Justice and CIA agents: classic hearsay.

Judge Mukasey also ruled that courts have no power to second-guess the president’s decision to declare someone to be an enemy combatant. So, the incredibly weak “some evidence” standard ultimately becomes a “no evidence” standard. Rather than weighing the evidence and allowing the victim of the government’s lawlessness to challenge the government’s assertions, the court simply accepted the Mobbs Declaration at face value.

This is a refusal to perform the judicial function. Courts must second-guess the executive branch, because the government cannot be trusted to examine its own behavior. After arguing before the highest court in the land that Padilla was so dangerous that he could not be trusted alone in a jail cell in a military prison with his lawyers, the administration recently conceded that the claim that Padilla was making a “dirty bomb” was wrong and most likely can never be used in court against Padilla. Additionally, the administration withheld information from the courts which suggested that Al Qaeda was “very skeptical” about the success of the proposed dirty-bomb plot. Apparently, Attorney General Ashcroft’s claim that the government had “disrupted an unfolding terrorist plot” was a scam and illustrates the need for checks on the authority of the executive branch.

In what was hailed as a “victory” for Padilla, Judge Mukasey did rule that Padilla was entitled to talk to a lawyer. But Judge Mukasey found that the Sixth Amendment’s right to counsel did not apply to Padilla. Claiming that Padilla could use his lawyer as a conduit to send messages back to Al Qaeda, the Justice Department had barred Padilla from meeting with his attorney.

Judge Mukasey ordered the government to allow Padilla and his lawyer to discuss only the habeas corpus petition, and not even how he was being treated. The Justice Department resisted Judge Mukasey’s order for one and a half years, but in March 2004, Padilla was finally allowed to meet with his attorney—even then, only in the presence of military handlers.

Some friend of the Constitution this guy is… If he is confirmed, we will no doubt see more of the same un-Constitutional garbage coming from our Executive.