Attorney General Mukasey gave a speech at the American Enterprise Institute on Monday morning (repeated before Congress yesterday) in which he issued an "urgent" call for a third round of Congressional legislation to ensure that this administration will never have to explain to a federal court why they have held our clients in Guantánamo for over six years. The other two rounds followed losses in the Supreme Court - the Detainee Treatment Act of 2005 (passed a year and half after we at the Center for Constitutional Rights won the first Guantánamo case, Rasul v. Bush, in the Supreme Court, and the Military Commissions Act of 2006, passed a few months after the administration's defeat in Hamdan v. Rumsfeld. The Supreme Court explicitly said last month in Boumediene v. Bush that the two prior attempts by Congress to intervene to prevent detainees from having access to the courts were unconstitutional, and that the lower courts should get on with the business of hearing these cases. Unfortunately, that hasn't prevented our nation's highest law enforcement official from trying again to ensure that no court has a chance to rule that one of our clients was wrongly detained during his watch.
Mukasey's complaints and the accompanying proposals are another attempt to drag us into years of further legal challenges and delays in these cases. Let's take a look at them, one by one.
Because there are no rules for habeas proceedings for "enemy combatants," chaos is going to break out in the courts, and Congress should force them all to follow one track by legislating rules of procedure. This is news to me, since I've just spent five weeks before just two federal Judges in one court in Washington, D.C., ironing out rules for the orderly progress of these cases. We have a schedule for the government to respond to our habeas petitions, and two neat stacks of status report summarizing where each of the 200-odd cases stand. This week we are briefing the question of what rules and standards should apply going forward. The cases are already in one set of courts, and the process is already moving along quickly and in an orderly fashion (despite the involvement of over 500 lawyers!). I suspect this is exactly what Mukasey doesn't want to see happen.
Oh my god! The detainees might be brought to hearings inside the United States! The administration has learned that it can readily invoke panic by mentioning the possibility that Guantanamo detainees might be moved to high-security prisons in the United States, as John McCain had proposed as a means to shut down Guantánamo. Traditionally, detainees are brought to court to witness their habeas hearings, but it has already been suggested that the easiest way to take detainee testimony is by setting up videolinks or having the judges and lawyers head down to Guantanamo (which federal judges have done in the past). Putting all that to one side, Mukasey's "security" concerns are ridiculous. If we can't "safely" bring a detainee into the U.S. to hear his testimony, then maybe we should all move to that salt mine with Dr. Strangelove.
"Now, the fact is that all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions who have absolutely no right to be here." Nonsense. The Seton Hall study of the military's own records shows that only 4% of the detainees were captured on anything resembling a battlefield. Only 5% were picked up in the first instance by American forces. Far, far more were purchased for $5000-per-head bounties from hungry villagers, corrupt Pakistani police, rival clans or warlords. The "rights" paradigm is also nonsense. Putting that to one side, as McCain likes to say, "this isn't about them, it's about us." We have judicial review not just to ensure that the rights of people in detention are protected, but also to protect the public interest by making sure the executive branch is doing a competent job in figuring out who to detain. We haven't had much robust oversight by the courts over the last six years, and you see the results in terms of executive competence.
The Courts aren't capable of handling classified information. The administration cannot point to a single legitimate example of a federal court process leaking classified information in the nearly three decades since Congress passed the Classified Information Protection Act. (The commonly cited examples of supposed leaks are completely bogus: the fact that the Embassy Bombing trial revealed that the feds knew about a satellite phone Bin Laden had used in the past (which he had long since stopped using at the time of the trial) and the disclosure of a list of unindicted coconspirators in the 1993 WTC bombing trial (which prosecutors never sought to seal from public view).) Where is the evidence that there is a problem Mukasey would have Congress solve? There is none. His proposals were made for only one reason: to delay the day when the government has to show a federal judge -- and the public -- whether it has any evidence against these men that can withstand the light of day.
We need legislation to acknowledge that we are in a war on terror. This is a transparent response not to the Boumediene decision but rather to this summer's decision in Parhat v. Gates, a detention challenge under the Detainee Treatment Act procedure the Republican Congress created in 2005. Even under the limited window for review provided under the DTA, the Court of Appeals found that there was no legitimate evidence that the detainee -- a refugee from a Muslim minority in China's far Western region (who are treated like Tibetans are by the central government) -- was ever associated with a group that was allied with the Taliban or Al Qaeda at the time of the 9/11 attacks. Because Congress, acting immediately after 9/11, authorized the use of military force only against groups that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored" them, Mukasey knows that many of the detainees in Guantanamo will be freed if this standard is applied. So he wants Congress to allow the use of the armed forces -- and the use of military detention -- against anyone the President claims is linked to terrorism. I don't trust this President's judgment that much. Congress shouldn't trust any president's judgment that much.
Habeas corpus should not be allowed for military commissions defendants. Let's put to one side the fact that the commissions process exists for the sole purpose of allowing introduction of torture evidence; that the crimes it creates (conspiracy and material support) have never been recognized as offenses against the common law of armed conflict; and that these trials will be devoid of any shred of legitimacy on the international stage. Let's forget, also, that it was the globally-acknowledged legitimacy of our full trials -- in ordinary federal criminal courts here in New York City -- of the embassy bombers and other Al Qaeda linked conspirators during the 1990s that laid the basis for the world's ready acceptance of Al Qaeda's responsibility for the 9/11 attacks, and thus facilitated international approval of our invasion of Afghanistan. Finally, let's forget that while Mukasey falsely accuses the federal courts of being unable to handle classified information during habeas proceedings, and claims military courts are better suited to this task, the military handed out a classified document to members of the press during the commission trial of Omar Khadr. (Forget also that the document showed the military's story of Khadr's guilt -- that he was the only person left alive during a raid on a house in which a U.S. soldier was killed by a grenade thrown by an unseen survivor -- was false, a secret kept from the media for several years until the mishap.) Even forgetting all of those very good reasons to put a halt to these farcical trials, the very federal courts Mukasey is afraid of (perhaps with good reason -- he used to be a federal judge) rejected the first attempt to halt military commissions trials with habeas, instead preferring to let them implode on their own. What is Mukasey so worried about? I forget.
For six and a half years, Congress and the Bush administration have done their level best to prevent the courts from reviewing the legality of the detention of the men in Guantanamo. Thankfully -- if this brutal Newsweek account of Mukasey's reception on Capital Hill is accurate - it doesn't look like that will happen this time around. Congress should be a part of the solution this time by staying out of the way and letting the courts do their job.