WASHINGTON – As the chief federal trial judge in Manhattan, Michael Mukasey approved secret warrants allowing government roundups of Muslims in the days after the Sept. 11 attacks.
Six years later, the man President Bush wants to be attorney general acknowledged that the law authorizing those warrants "has its perils" in terrorism cases and urged Congress to "fix a strained and mismatched legal system."
Mukasey's caution about the material witness law probably will please Democrats who control the Senate Judiciary Committee. At confirmation hearings set to begin Wednesday, they plan to press the retired federal judge about the Bush administration's terrorist detention policy.
The committee chairman, Sen. Patrick Leahy, long has criticized the government's use of the warrants. They allowed the FBI to detain, without charges, an estimated 70 people, all but one of whom was a Muslim, as witnesses after the terrorist attacks in 2001.
Leahy, D-Vt., is expected to question Mukasey about this and other issues the senator has described as arising "from this administration's abuse of secrecy and expansion of executive power."
A fellow Democrat on the committee, New York Sen. Charles E. Schumer, said he supports Mukasey but disagrees with some of his positions on terrorist detentions.
"We may have some disagreement on what that structure should be. But he will not try to unilaterally expropriate all of the lawmaking to the executive branch. The point is that it's done with open debate, and Congress has to pass it," Schumer said Friday.
Congress authorized material witness warrants in 1984 to allow the temporary detention of witnesses who might flee before being called to testify to a grand jury or at trial. The warrants are signed by a judge in secret; the public is barred from court hearings about the people targeted by the warrants.
Critics have said the administration has used the law to detain suspected terrorists when the government lacked sufficient criminal evidence to hold them. The administration has tried to deflect criticism by pointing out that judges must sign the warrants.
"Material witness warrants are really short-lived," former federal prosecutor David N. Kelley said. "You give your information and the government is either going to have you testify and let you go, or if there is another crime, you're going to be charged with that. People who are held as witnesses are witnesses because they were involved or connected with the conduct."
Mukasey was the chief judge in the federal courthouse just blocks from ground zero. He presided over several hearings — the Justice Department will not say how many — for men detained as material witnesses, but not initially charged with a crime.
He criticized a fellow U.S. District Court judge in Manhattan who ruled that warrants issued in the post-Sept. 11 roundup was an illegitimate use of the law. Mukasey issued a ruling upholding the warrants as constitutional.
But the case of Jose Padilla, branded by authorities at first as an important al-Qaida operative who planned to detonate a radioactive "dirty bomb" in a U.S. city, eventually gave Mukasey pause.
In May 2002, Mukasey approved Padilla's arrest on a material witness warrant as part of the government's investigation of al-Qaida. But when Padilla, a U.S. citizen, was convicted more than five years later of murder conspiracy, the allegations that he was a key al-Qaida operative never made it to court.
The outcome led Mukasey to say that the current legal system is not well-equipped to aid a largely military effort to fight terrorists.
"The material witness statute has its perils," Mukasey wrote in the Aug. 22 editions of The Wall Street Journal.
He added: "Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results."
Mukasey's views on material witness warrants probably will be used as a starting point for senators seeking clues on how he will address the Justice Department's defense of detaining suspected terrorists without charging them.
"Is he going to take steps to make sure that we don't have another roundup like that?" said Chris Anderson, legislative counsel at the American Civil Liberties Union.
The ACLU and Human Rights Watch in 2005 reported that only 28 of at least 70 suspected terrorists held on material witness warrants were ever charged with a crime and most of those charges were unrelated to terrorism.
The report found that one-third of those held on the warrants were detained for at least two months before they were charged or released.
The issue could give senators an opening to press Mukasey on what legal rights would be extended to suspected terrorists if they are moved into U.S. prisons from the detention center at Guantanamo Bay, Cuba. Only a few of the detainees held there for years have been charged with a crime. But they would have stronger legal footing to challenge their detention if they are relocated into the United States.
"It's an important question — it goes to the heart of the Constitution and American values," Anderson said. "The United States does not have a tradition of holding people indefinitely without charges."
Mukasey enters his confirmation hearings with a reputation as a judge who was tough on defendants in terrorism cases, but fair.
"He is definitely a law-and-order person. There are times when he has sided with the government, but there have been times he's ruled against the government," said defense lawyer Andrew G. Patel, who represented Padilla. "I may not agree with how he ultimately comes out on an issue, but always find that his method of arriving at that decision is intellectually honest."
Patel declined to address the details of Padilla's case.
Kelley, the former prosecutor, helped run the government's investigation of the Sept. 11 attacks. He said Mukasey signed off on warrants only after deciding that prosecutors made a good case for them.
Kelley also said he could not remember any lawyers representing the people being held who demanded the immediate release of their clients.
He added: "To say the judge was signing off pro forma is unfair and terribly misleading. The government was doing its job of meeting its standard."