When Rep. Tom Feeney, (R-FL) threatened to gather confidential material from federal judges to develop profiles of jurists who failed to comply with mandatory sentencing guidelines, Mukasey shared his opinion of that: “They can have their blacklists. But we have life tenure.”

Finally, showing a sense of humor, Mukasey told attorneys for the Tommy Hilfiger fashion empire to “chill” regarding patent concerns about a dog perfume called Timmy Holedigger. He noted dryly, "A statement drawing a likeness between the buyer's own taste and that of his or her pet is unverifiable puff.”

Two Wall Street Journal Articles Show a More Doctrinaire Side

Mukasey’s Wall Street Journal article defending the Patriot Act will raise concerns. The first is titled “The Spirit of Liberty Before attacking the Patriot Act, try reading it,” Wall Street Journal 5/10/2004

He argued:

Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists

Law enforcement prior to the act had unreasonable restrictions which limited evidence gathering, he asserted. This was caused by a failure to update laws to match current technology and also through artificial barriers between intelligence gathering and criminal investigation divisions with the same agency, e.g., FBI.

Mukasey asked, “What difference would this make?” referring to the updated provisions in the act.

Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. Wall Street Journal 5/10/2004

His arguments in Jose Padilla Makes Bad Law are more reflective and display some fairly complex reasoning. Taking off on the maxim, big cases make bad law; Mukasey argued that “The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.” He summarizes this in three points:

1) Antiterrorist prosecutions have produced limited results yet strained “the financial and security resources of the federal courts near to the limit.”

2) “… such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.”

3) “…consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.”

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Wall Street Journal, 8/22/07,

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