The New York Times Op-Ed page asked legal scholars to pose questions for attorney general nominee Michael B. Mukasey. Associate Professor Jenny S. Martinez posed the following:
1. You held in Padilla v. Rumsfeld that the president has the authority to detain Americans arrested in the United States as “enemy combatants” in the “war on terrorism.” What is an “enemy combatant,” and from what legal source do you derive your definition of that term? How long do you believe such individuals may constitutionally be held without criminal trial? Do agree with the Justice Department lawyer who told a federal judge that a little old lady who sent a check to an orphanage in Afghanistan that turned out to have ties to Al Qaeda could be detained as an “enemy combatant”?
2. Do you believe the president is legally obliged to comply with federal statutes if he thinks compliance in a particular instance would harm national security? What about the Geneva Conventions and other treaties ratified by the Senate?