Questions Mukasey Must Answer

Michael Mukasey heads into his hearings for confirmation as Attorney General with a high bar to clear. The retired judge must demonstrate that he can restore morale and the integrity the Department of Justice lost under Alberto Gonzales, demonstrate independence from the White House, and regain the trust of the American people.

While Mukasey’s nomination has drawn initial, bipartisan praise, the Senate must provide intense scrutiny and vigilant oversight. Mukasey may be new, but this is still the Bush Administration, which has shown no sign of changing any of the policies that led to the disintegration at the DOJ.

When he appears before the Senate Judiciary Committee this week, Mukasey must be asked tough questions about key issues he’ll face as Attorney General, and held accountable for his responses:

  • The political firing of U.S. Attorneys
  • Indefinite detention of Guantanamo detainees and terror suspects
  • Civil rights and access to the ballot box
  • The abuse of “national security letters” by the FBI
  • Warrantless wiretapping of American citizens
  • The review of judicial nominees and his own participation in presidential politics

Under the failed leadership of Alberto Gonzales, the DOJ underwent unprecedented politicization and was used to undermine fundamental rights in the name of the war on terror. Senators should also be clear with Mukasey that they expect full cooperation with congressional oversight investigations of the abuses that have been uncovered, and expect him to bring a new era of openness to the department.

Firing US Attorneys

The Justice Department under Gonzales worked with the White House to fire nine U.S. attorneys for a variety of partisan and political reasons, as documented by news media reports and congressional testimony. Will the new Attorney General cooperate fully with congressional investigations into the department’s involvement with the firings? Will he release all documents and records pertaining to the scandal and comply with congressional subpoenas? Will he pledge to resist any White House efforts to hire or fire U.S. attorneys for partisan purposes?

Indefinite Detention of Detainees

Since 2002, hundreds of foreign nationals captured abroad in the “war on terror” have been held in detention at Guantanamo Bay, along with suspects arrested in the United States on terrorism charges. Some have been held without review, hearing or access to an attorney for years. Gonzales was the architect of many of the administration’s detention policies. He even testified in Congress that the Constitution does not guarantee these foreign detainees habeas corpus rights, flying in the face of hundreds of years of legal thought. While Mukasey ruled in the Padilla case that detainees had a right to counsel, he also ruled that the President could indefinitely detain American citizens captured on U.S. soil as terror suspects without charging them with a crime. His ruling was overturned. Where does Mukasey stand today? Will he defend the Bush Administration’s policies?

Civil Rights and Access to the Ballot Box

Historically the Justice Department has sought to protect the civil rights of minorities and increase their access to the ballot box. But under Gonzales, the department instead pursued bogus charges of “voter fraud” and brought politically motivated charges against candidates during the run-up to elections. Instead of the Justice Department enforcing the laws intended to enfranchise and protect voters, it appears that DOJ has been selectively twisting its enforcement based on partisan politics. Where does Mukasey stand on civil rights, including voting rights? How will he rebuild a division of the Justice Department that has seen mass resignations over its policies and selective enforcement strategies? How will he re-focus its efforts?

National Security Letters

Earlier this year, the Inspector General of the Department of Justice released a report detailing widespread and serious abuses of National Security Letters (NSLs) by the FBI. What will Mukasey do to ensure that the FBI’s use of NSLs will be lawful, within the confines of the law and properly monitored?

Warantless Wiretapping

Gonzales was deeply involved in creating and defending the Bush Administration’s decision to allow the National Security Agency to engage in domestic eavesdropping without warrants, in direct violation of federal laws which plainly prohibit domestic spying without a warrant. Where does Mukasey stand on the issue? Will he provide information about the workings of the program that Gonzales refused to provide? How will he enforce the clear will of Congress on this issue?

Judicial Nominees and the Giuliani Campaign

Mukasey serves on GOP presidential candidate Rudy Giuliani’s “selection committee” for judicial nominees, a political issue of critical importance to the far-right wing base of his party. Giuliani established the committee to convince right-wing GOP voters that as President, he would nominate ultraconservatives to the Supreme Court and other federal judicial seats. How will Mukasey make the transition from his role as an adviser to a presidential candidate to nonpartisan, nonpolitical lawyer? How will he advise President Bush on his remaining nominations to the federal bench?


Americans deserve to know that the next Attorney General will hold the country and its laws above partisan politics. It’s up to the Senate to ask Michael Mukasey the hard questions, and hold his record, opinions and beliefs to the hard light of public scrutiny.

For more information contact Mary Moreno at (202) 467-2338 or by e-mail,

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