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More on Attorney General Nominee Mukasey

More on Attorney General Nominee Mukasey

WASHINGTON, D.C. – More information has surfaced about Attorney General nominee Michael Mukasey, and none of it's good.

A New York Times editorial yesterday notes that, "In a 2004 Wall Street Journal op-ed article, Mr. Mukasey denounced the 'hysteria' of Patriot Act critics, and lashed out at the American Library Association for trying to protect patrons' privacy. He also made the dubious claim that based on the structure of the Constitution, the government should 'receive from its citizens the benefit of the doubt.' And writing in The Journal this year, he promoted the truly awful idea of a separate national security court that would try suspected terrorists."

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As adult industry vets well know, the American Library Association has been in the forefront of protecting free speech rights for sexual speech, even acting as the plaintiff in the first court challenge to 2257 which resulted in a favorable opinion from the D.C. Circuit way back in 1994. For Mukasey to fault the ALA for trying to stop the government from violating library patrons' Fourth Amendment rights against warrantless searches of their reading lists – not to mention their Ninth and Fourteenth Amendment privacy rights – suggests that Mukasey will be a bad choice for free speech advocates.

Moreover, to claim that the "structure of the Constitution" – a document written in large part to restrict the power of the federal government, as exemplified in the Ninth and Tenth Amendments, as well as the enumerated powers in the main document itself – actually gives the government more power over the citizenry than they can find in the plain text of the document is an affront to just about everything the Founding Fathers stood for. After all, it was Jefferson who said, "Let us hear no more of confidence in men, but bind them down with the chains of the Constitution."

Of course, Mukasey's affirmation of the concept of "enemy combatant" in the Jose Padilla case should be the primary clue to where he stands in the battle between government power and constitutional rights. Nowhere does the Constitution grant the president or Congress, even in time of war, the power to deprive an American citizen (which Padilla is and was) of the full protections of his/her constitutional rights, no matter what label they may apply to him/her. Nonetheless, Mukasey used his power as a federal judge to grant the government that power, and although that ruling was overturned by the court of appeals, it is by no means clear that were the case to reach the Supreme Court as it is presently constituted, that that court would rule against that overreaching of power. In fact, as to non-citizens, the Supreme Court has already upheld the president's ability to declare prisoners "enemy combatants" and deprived them of their rights under the Geneva Conventions, which under Article III, Sec. 2 are part of the laws of the land and not subject to presidential or congressional whim in their violation.

"Mr. Mukasey also needs to be asked, in detail, how he intends to fix the Justice Department," the Times editorial continues. "There is strong evidence that federal prosecutors brought cases to help Republicans win elections. Mr. Mukasey needs to promise that he will get to the bottom of these matters, and that he will make available the critical documents and witnesses that the administration has withheld. Mr. Mukasey also needs to explain how he plans to remove the partisan political operatives put in nonpartisan positions under Mr. Gonzales and, more broadly, how he plans to restore the department’s integrity."

Much as the adult industry has reason to fear the Justice Department's attempts to enforce the unconstitutional obscenity laws that have been enacted, it has even more reason to fear a Justice Department that will target the industry not because the majority of the population finds its materials objectionable – an idea belied by the hundreds of millions of adult video rentals and billions of dollars spent on adult entertainment annually – but because the supporters of the administration find it politically useful to be able to point to such prosecutions, even when baseless, to curry favor with the religio-conservative electorate.

Despite the scientifically-refuted "damage" attributed by the theocons to the availability of sexually explicit material – "porn causes deterioration of the culture"; "porn contributes to the divorce rate"; "porn causes addiction"; "adult stores cause adverse secondary effects on the community" – the fact is that the number of rapes and other violent sex crimes have been steadily going down as porn has become more available. That fact alone would militate against the increasing governmental attacks on the industry – but only an attorney general with the integrity to stand up to the political pressures to target sexual material can restore the (taxpaying) adult industry's legitimate expectation of fair treatment from its elected officials.

Indeed, several major newspapers across America have expressed similar doubts about Mukasey's trustworthiness to be attorney general.

"While Mukasey is a short-term 'care taker' at the DOJ who will be there only for the duration of Bush's (thank heavens) final term," wrote the Seattle Post-Intelligencer, "he nonetheless has his work cut out for him. Aside from low morale at the DOJ, the damage done to the department's credibility is immense. Should his nomination pass, we hope Mukasey manages to restore honor to the department and to his office."

"President Bush's nominee to succeed the most lamentable attorney general of the United States since Warren Harding's scandal-plagued accomplice, Harry M. Daugherty, is undoubtedly capable of doing a better job than Alberto Gonzales," wrote The Capital Times of Wisconsin. "But, with all due respect to the president's pick ... a randomly selected University of Wisconsin Law School graduate would make a better attorney general than Gonzales."

"Make no mistake, however: Mukasey's outlook on politics and the law are not greatly at odds with the president's," wrote the Des Moines Register. "The appointment of an attorney general is the president's prerogative, however, and Bush has the same right as any other president to choose one who shares his views. That prerogative does not mean the president should expect the attorney general to ignore the Constitution and the law, as Gonzales did in giving his blessing to practices such as spying on American citizens and endorsing interrogation by torture. Thus, while the Senate should be prepared to confirm Mukasey, it must first be satisfied that he understands his first duty is to the rule of law, which sometimes means giving the president advice he doesn't want to hear."

People for the American Way has posted a list of six key issues to which senators should demand acceptable responses from Mukasey during his confirmation process, including what he'll do about the firing of several U.S. Attorneys for political reasons; the detention of prisoners of war and other "terror suspects" at Guantanamo Bay with little or no regard for their legal rights under international law; the use of Republican "dirty tricks" to prevent the poor and minorities from exercising their voting rights, and the already-compromised security of the voting process itself; the FBI's abuse of "national security letters" to perform secret searches unknown to the target(s) of the search and the NSA's warrantless wiretapping programs; and the proper vetting of federal judicial nominees, as well as Mukasey's own participation in presidential politics.

Of course, religious conservatives have expressed their support for Mukasey – and especially as to the possibility that he will target the adult industry even more extensively than Gonzales:

"As we await more on his commitment to life, marriage, and religious liberty," wrote Tony Perkins of Family Research Council, "we hope that Mukasey's dedication to security issues extends to keeping families safe from obscenity and pornography — an area that Gonzales' D.O.J. had largely left uncovered."

"[T]o most conservatives, Mukasey is an unknown," wrote the staff of Citizenlink, Focus on the Family's e-news daily. "As attorney general, he would direct, among other things, the Justice Department’s prosecution of obscenity. Phil Burress of Citizens for Community Values said the senators who question him at his hearing need to zero in on that issue. He said laws against hard-core pornography have 'not been enforced for the last 15 years.'"

Despite Burress's lack of contact with reality as to the Justice Department's obscenity prosecution program, theocons can be relatively sure they'll get what they want with Mukasey: Increased obscenity indictments, since that's one of the few issues on which the administration can count on bipartisan support from conservatives. And Bush can be relatively sure that he'll get what he wants: An attorney general who'll do his best to thwart congressional oversight of Republican attempts to create a thousand-year Reich.






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Mark Kernes

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