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 of Vermont, 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.
A fellow Democrat, New York Sen. Charles E. Schumer, said he supports Mukasey but disagrees with some of his positions on terrorist detentions.
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.