The widely expected nomination of a former judge, Michael Mukasey, as attorney general could draw fresh scrutiny of his role in authorizing the secret detention of an unknown number of men without criminal charges following the terrorist attacks of September 11, 2001.

The American Civil Liberties Union and Human Rights Watch denounced the detentions as “Kafkaesque.” The groups said prosecutors abused the material witness provisions to detain at least 70 men, often when they were suspected of crimes but evidence was lacking. Almost half were never bought before a court or grand jury to testify.

“I’m appalled at the choice,” a lawyer involved in one material witness case before Judge Mukasey, Randall Hamud, told The New York Sun yesterday. “In a sealed courtroom that has since been publicized, he kicked my co-counsel out of court. I told him my client had been beat up. He told me, ‘Your client looks okay. File a lawsuit in a couple of years.'”

Mr. Hamud said senators considering Judge Mukasey’s nomination should seek out the details of the hearings held behind closed doors in 2001. “The secrecy basically allowed him to run amok,” Mr. Hamud said. “They should review every one of those sealed proceeding transcripts and see what this man was doing from the bench. These weren’t criminal defendants. They were just witnesses.”

The precise number of material witness detentions Judge Mukasey authorized is not publicly known because nearly all court records related to the cases were sealed on order from the judge, who said secrecy was required because the witnesses were to be called before grand juries. “As far as he is concerned … they will remain sealed, forever,” Judge Mukasey’s secretary told the Washington Post in October 2001.

Judge Mukasey did not respond to interview requests in recent days. In the past, he has reacted angrily to claims that the detentions represented an abuse of power. “Although the court proceedings were sealed because they related to grand jury matters, the lawyers for the witnesses were free to talk about the cases or not, as they chose,” Judge Mukasey told Brooklyn Law School graduates in 2002, according to the Post. “Some chose to speak publicly, and others didn’t. That is the unremarkable truth behind the breathless half-truths and outright falsehoods you may have heard.”

Mr. Hamud and other attorneys for witnesses have insisted that court rules preclude lawyers from discussing sealed proceedings. While the witnesses themselves could have talked, many were under maximum security confinement with little access to telephones, the lawyers said.

A former prosecutor and early proponent of Judge Mukasey’s nomination as attorney general, Andrew McCarthy, has insisted that the judge scrupulously safeguarded the rights of the alleged witnesses. “The proceedings were kept on a tight leash — under strict judicial supervision, with detainees promptly released unless there was an independent reason to charge them with crimes,” Mr. McCarthy wrote last week on National Review Online. In 2003, the 2nd Circuit Court of Appeals upheld the use of the material witness statute to detain potential grand jury witnesses. However, the ruling did not assuage the concerns of some in Congress, including the Democratic lawmaker who would preside over confirmation hearings for Judge Mukasey, Senator Leahy of Vermont. He introduced legislation to tighten the requirements of the material witness law.

Mr. Leahy also described as “flawed” the notion that grand jury secrecy precludes the disclosure of details about such cases. While many judges sought to keep material witness cases secret, other judges, including some in New York, concluded that details of some cases could be unsealed.

A professor at Loyola Law School in Los Angeles, Laurie Levenson, said she doubted that the flap over the witnesses would ultimately pose an impediment to Judge Mukasey’s confirmation. “If not sure if there’s a will to do that,” she said. “Anybody who followed any of the rules during this period looks like a judicial saint.”

A law professor at the University of Maryland, I. Michael Greenberger, said he disagrees with Judge Mukasey about the witness issue but still thinks he is a good choice for attorney general. “Given the possibilities … I have more faith in him than I would anybody else,” the professor said. The Human Rights Watch and ACLU report triggered a Justice Department inquiry that concluded that in 14 “matters” the agency’s lawyers “did not misuse the material witness statute and thus did not commit professional misconduct or exercise poor judgment.”

A redacted version of the report, obtained by the Sun under the Freedom of Information Act, did not appear to address the conduct of judges. After deliberating for six months, the Office of Professional Responsibility declined to release the factual basis for its findings and referred the material to federal prosecutors and the FBI for further review.