Shayana Kadidal discusses Mukasey’s role in the trial of José Padilla, his view on presidential power and the significance of the news that that the Justice Department under former Attorney General Alberto Gonzales secretly issued legal opinions that reportedly authorize methods including head slapping, simulated drowning and frigid temperatures. [includes rush transcript]
AMY GOODMAN: The Bush administration is continuing to reject calls by congressional Democrats to release a series of secret legal opinions effectively sanctioning the use of torture.
The New York Times revealed last week the Justice Department, under former Attorney General Alberto Gonzales, secretly issued the memos that reportedly authorize methods including head slapping, simulated drowning and frigid temperatures. The first opinion came shortly after Gonzales arrived in February 2005. Just months earlier, the Justice Department had publicly declared torture "abhorrent."
The showdown on Capitol Hill over the release of the documents comes as the Senate Judiciary Committee prepares for confirmation hearings for U.S. attorney general nominee Michael Mukasey. The hearings could begin as early as October 17th. President Bush officially nominated Mukasey, a retired federal judge, on September 17th.
Committee Chair Patrick Leahy says he will seek Mukasey’s opinion on the firing of nine U.S. attorneys, the Bush administration’s secret domestic wiretapping program and a list of what he called other topics of "concern."
Shayana Kadidal is a staff attorney for the Center for Constitutional Rights here in New York. He works on CCR’s case on the illegal NSA domestic spying program, as well as the Center’s PATRIOT Act case. He’s a regular contributor to The Huffington Post. Shayana joins us now in our firehouse studio. Welcome to Democracy Now!
SHAYANA KADIDAL: Good morning, Amy. Thanks for having me.
AMY GOODMAN: Can you talk about the significance of the torture memos that we have now seen, not because the government has released them to Congress, but because The New York Times revealed them, and how this relates to the confirmation hearing for Judge Mukasey?
SHAYANA KADIDAL: Sure. Well, you know, the reality is the Times has talked to government officials who have seen the memos. They haven’t actually seen the memos. And so, the release of the actual memos — there are two of them, one saying that the torture prohibitions in the Constitution and various treaties don’t apply to the CIA, and another one sort of defining torture — no one has seen them. And so, whether or not they’re released to Congress, that’s going to be a huge issue for the new attorney general to deal with. And, you know, I assume that the Democrats are going ask Mukasey whether or not he’s willing to release these.
AMY GOODMAN: Talk about who Judge Mukasey is, why you’re blogging about him. And, well, then we’ll talking about the kind of questions that could be asked in the confirmation hearing.
SHAYANA KADIDAL: Sure. Well, you know, it’s a little bit of self-interest. You know, one of the key things, I think, that we should be concerned about with Mukasey is that he hates the legal left. He has come after the Center for Constitutional Rights in, you know, his op-ed piece in The Wall Street Journal about a month before he was nominated.
AMY GOODMAN: Explain.
SHAYANA KADIDAL: Oh, sure. Well, you know, Michael Ratner, the president of the Center, shortly after lawyers started going down to Guantánamo, did an interview with Mother Jones magazine in which he said, you know, look, lawyers are going to go down there, talk to detainees, and they’re going to confirm stories of torture that we’ve heard already, you know, Abu Ghraib-style things happening at Guantánamo. And he said, you know, look, you can’t run a torture and interrogation camp with lawyers going down there. And in Mukasey’s reading, that’s become "You can’t run an interrogation camp with lawyers going down there." He said in the Journal, "The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantánamo so as to paralyze the interrogation of detainees." And he’s come after the American Library act for protesting the PATRIOT Act. He’s clearly —
AMY GOODMAN: American Library Association?
SHAYANA KADIDAL: Right, right. And, you know, he’s clearly a guy, I think, who has distaste for people who, you know, voice skepticism about the government’s motives in the war on terror, which is a troubling thing for a federal judge to sort of feel.
AMY GOODMAN: Can you talk about his role in the José Padilla case?
SHAYANA KADIDAL: Sure. Well, José Padilla was a U.S. citizen — is a U.S. citizen who was arrested at O’Hare Airport, and the Justice Department’s initial sort of account of who he was was that he was coming here to the U.S. to plant a dirty bomb somewhere. It’s a real serious allegation. This all happened right after 9/11. And he ended up in Mukasey’s courtroom, first detained as a material witness, which meant they weren’t charging him with anything — they just wanted to keep him so he could testify in someone else’s proceeding — and then as an enemy combatant, which is kind of this completely newfangled category of military detainee.
And, you know, some people on the left were excited when Mukasey was nominated, because, you know, first, he wasn’t a Bush administration insider like Alberto Gonzales, but moreover, they felt that he had given Padilla a pretty balanced sort of deal, that, you know, he had said, "You have the right to see a lawyer," for instance. But the reality is that, you know, this case that he decided, which was pretty shortly after 9/11, maybe within the first year, said that the president has a right to hold people as military detainees, that somebody like Padilla, who ordinarily would have to be charged with a crime, because he was a U.S. citizen, because he was arrested in the U.S., at minimum, that the executive can just hold him by designating him an enemy combatant. And Mukasey set a very low standard for what the President has to show.
You know, so people on the left look at that case, and they think, well, Mukasey said that, you know, an enemy combatant can get into U.S. court, but the reality is that it would have been a very short stay in court. And then, he did say that you are allowed to see a lawyer as an enemy combatant, but he said that the military can listen in on your conversations with the lawyer. And, in fact, José Padilla didn’t see a lawyer for three years when he was held as an enemy combatant.
AMY GOODMAN: What are the questions you think that the senators should ask?
SHAYANA KADIDAL: Sure, well, I think, you know, they should really probe into his views on key war on terror issues. You know, is it acceptable for the president to hold detainees without any form of review from federal judges? Is torture ever acceptable, and what are the boundaries on it? You know, and is he going to be willing to do real investigations of misconduct of this administration, perhaps by appointing a special prosecutor?
Now, Newsweek reported that during Mukasey’s White House interview for the job that he gave answers to all three of those questions that are things that the administration would be pleased to hear, that he thinks we should be allowed to hold people outside of the court process, that torture is acceptable for certain, you know, sort of high-value detainees, and that he voiced skepticism about whether it was wise to appoint a special prosecutor.
AMY GOODMAN: Can you talk about the significance Friday, the U.S. military’s chief prosecutor for the Guantánamo war crimes trial is resigning, Air Force Colonel Davis?
SHAYANA KADIDAL: Sure. Well, it shows what a mess this entire system has been. You know, the military is making up rules as it goes along for trying these so-called terror suspects. In fact, some of the charges are things that were created after the violations had supposedly occurred. You know, we’re seeing ex post facto charges, really, against a lot of these guys, and this is just another symptom of making up the rules as you go along.
AMY GOODMAN: They say that he was clashing with the Pentagon. They wanted him to bring war crimes prosecutions in a sensational way.
SHAYANA KADIDAL: Right. And he felt, you know, his supervisors were interfering with his role as a prosecutor. You know, prosecutors do work for the executive — in this case, he’s a military prosecutor — but they’re also supposed to exercise independent judgment. The founders thought about putting the Justice Department in the judicial branch instead of the executive, in order to ensure a little distance from the president. And this is another example of things that go wrong when there’s interference from above.
AMY GOODMAN: How important is Judge Mukasey as attorney general? What will he be determining over these next few years?
SHAYANA KADIDAL: Well, among other things, he’ll — the Office of Legal Counsel, which gives the president legal advice, which wrote all these torture memos, that’s part of the Justice Department, so he would have final oversight over the people who are, you know, at OLC and that sort of thing. Beyond that, he’ll be deciding on who to prosecute on interpretations of federal law generally that bind the executive branch. So it’s a hugely important position. And I think in some ways he’s a brilliant choice by Bush. You know, he doesn’t appear to be an insider, but he’s someone who agrees with all their positions on executive power.
AMY GOODMAN: Shayana Kadidal, I want to thank you very much for joining us, staff attorney with the Center for Constitutional Rights in New York. He is a regular contributor to The Huffington Post.