More dishonestly still, Mukasey in today's Op-Ed claims that he ordered Padilla to have access to counsel only "as a convenience to the court and not for any constitutionally based reason," and only because Padilla (unlike Abdulmutallab) was a U.S. citizen. Both of those excuses are blatantly and demonstrably false. The whole legal basis for Mukasey's ruling was that (1)
he would order Padilla to have access to counsel even if
he had believed Bush's fear-mongering claims because Padilla had a constitutional right
to counsel; and (2)
the basis for that right is not that Padilla is a citizen, but rather, that all "persons" on U.S. soil
have that right. Just listen to what the Mukasey back then said in order to see how blatantly dishonest the Mukasey of today is (emphasis added):
Even if the predictions [of the Bush DOJ] were reliably more certain than they in fact are, I would not be free simply to take the counsel of Admiral Jacoby's fears, however well founded and sincere, and on that basis alone deny Padilla access to a lawyer. There is no dispute that Padilla has the right to bring this petition, and, for the reasons set forth in the Opinion, the statute makes it plain that he has the right to present facts if he chooses to do so. . . .
Arbitrary deprivation of liberty violates the Due Process Clause, Foucha v. Louisiana, 504 U.S. 71, 80 (1992), which "applies to all 'persons' within the United States," Zadvydas v. Davis, 533 U.S. 678, 693 (2001). . . . [U]nless he has the opportunity to make a submission, this court cannot do what the applicable statutes and the Due Process Clause require it to do: confirm what frankly appears likely from the Mobbs Declaration but cannot be certain if based only on the Mobbs Declaration -- that Padilla's detention is not arbitrary, and that, because his detention is not arbitrary, the President is exercising a power vouchsafed to him by the Constitution. . . .
The Court in Hamdi took pains to point out that its holding was limited to "the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces." Hamdi, 316 F.3d at 465. That wise restraint is well worth following in this case by recognizing explicitly the limits of the current holding, and thereby recognizing as well the contrast between this case and Hamdi. Unlike Hamdi, Padilla was detained in this country, and initially by law enforcement officers pursuant to a material witness warrant. He was not captured on a foreign battlefield by soldiers in combat. The prospect of courts second-guessing battlefield decisions, which they have resolutely refused to do, e.g., id. at 474; cf. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1977), does not loom in this case.
It's true that this decision did not address the question of Miranda
warnings, but the point is that Mukasey's reasoning there directly negates what he is now arguing. Based on those two findings -- that (1) there was no clear evidence that allowing access to a lawyer would jeopardize intelligence-gathering and, even if there were, it wouldn't matter, because (2) Padilla, as someone detained on U.S. soil
., had a constitutional right to a lawyer -- Mukasey ordered the Bush DOJ to comply with his directive in unusually strong language:
Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further "dialogue" about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so.
Note, too, that Mukasey insisted that courts have the constitutional obligation to ensure that presidential-ordered detentions "are not arbitrary," a claim both the Bush administration and now the Obama administration, in some circumstances, vigorously contests.