The Mukasey Gambit

Every election year, the Bush Administration manages to come up with one killer piece of legislation right around the end of the cycle to use to prove Democratic weakness and beat them over the head. It works most of the time, and even if they don't go on to electoral victory, they end up extracting key concessions from the other side in the name of national security. This year, the Attorney General is looking to invalidate Boumediene. I think I have to repeat Mukasey's "Contract On America" in full:

First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. There are more than 200 detainees remaining at Guantanamo Bay, and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay, which is both remote and safe.

Far more critically, although the Constitution may require generally that a habeas court have the authority to order release, no court should be able to order that an alien captured and detained abroad during wartime be admitted and released into the United States.

Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our Nation gathers intelligence, and what that intelligence is. In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators - a list that included Osama bin Laden. This was in 1995, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden's hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike.

Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes. Twenty individuals have already been charged, and many more may be charged in the upcoming months. Last Thursday, we received a favorable decision from a federal court rejecting the effort of a detainee to block his military commission trial from going forward, but detainees will inevitably file further court challenges in an effort to delay these proceedings. Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief. So should alien enemy combatants. Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials. The victims of the September 11th terrorist attacks should not have to wait any longer to see those who stand accused face trial.

Fourth, any legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. And Congress should adopt rules that strike a reasonable balance between the detainees' rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. In other words, Congress should accept the Supreme Court's explicit invitation to make these proceedings, in a word repeated often in the Boumediene decision, practical-that is, proceedings adapted to the real world we live in, not the ideal world we wish we lived in.

Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict. And they must ensure that court proceedings are not permitted to interfere with the mission of our armed forces. Our soldiers fighting the War on Terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings; affidavits, prepared after battlefield activities have ceased, should be enough.

And military personnel should not be required to risk their lives to create the sort of arrest reports and chain-of-custody reports that are used, under very different circumstances, by ordinary law enforcement officers in the United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives. As one editorialist put it, this is not CSI Kandahar. Federal courts have never treated habeas corpus as demanding full-dress trials, even in ordinary criminal cases, and it would be particularly unwise to do so here given the grave national security concerns I have discussed.

Sixth and finally, because of the significant resource constraints on the Government's ability to defend the hundreds of habeas cases proceeding in the district courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. One unintended consequence of the Supreme Court's decision in Boumediene is that detainees now have two separate, and redundant, procedures to challenge their detention, one under the Detainee Treatment Act and the other under the Constitution. Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should reaffirm its previous decision to eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Here I must make explicit, and perhaps risk reiterating, a point I would hope was obvious from the discussion so far. We are talking here about habeas corpus proceedings, not about criminal trials of the sort that some but not all of the detainees at Guantanamo Bay may face. Some people have argued that we should either charge the detainees we are holding at Guantanamo with crimes, or release them. We can and we have charged some detainees with war crimes. These proceedings are exceptionally important, and I referred to them earlier.

But to suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principal reasons why we detain enemy combatants in the first place: it has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers. The Department of Defense and the Department of State have worked together to release those whom we believe can be transferred to a third country, consistent with the safety of our citizens and our military personnel abroad, and with our humanitarian commitments; of the 775 people who have been detained at Guantanamo, only about one-third remain. The fact that we have not charged all of those remaining at Guantanamo with crimes should not be regarded as a fair criticism of our detention policies; rather, it reflects the fundamental reality that these individuals were captured in an armed conflict, not in a police raid.

Boy, this guy really was Giuliani's good buddy, wasn't he?

It's this authoritarian mentality, this shameful lying about how we picked up random brown people in Afghanistan and locked them up forever to hide their innocence, that has put us in the position that Great Britain won't extradite prisoners to us for fear that we will torture them. Mukasey is a total scumbag, and he's asking for the whole enchilada - essentially a new war authorization with Al Qaeda (even though we ditched them to fight in Iraq), eliminating the very habeas rights that the Supreme Court explicitly gave to prisoners AFTER CONGRESS PASSED A LAW THE FIRST TIME, and a host of other ridiculous requests, which would have the effect of allowing the President to declare anyone a terrorist and holding them incommunicado forever.

Harry Reid, Patrick Leahy and Russ Feingold (whose signature I now have on a T-shirt as a result of coming in second in the Netroots Nation pub quiz) responded to this today. Reid and Leahy's statements averred that there isn't enough time to comply with Mukasey. But Feingold, as usual, told the truth.

“The Attorney General’s comments today appeared to be an attempt to create an election-year security issue where there isn’t one. Our federal courts are capable of handling these cases, and no dangerous detainees held at Guantanamo will be released anytime soon. By repeatedly mishandling these cases, the administration has delayed justice from being served. If congressional action is needed to clean up the mess the administration created at Guantanamo, it should be taken alongside a new administration that doesn’t have such contempt for the rule of law.”

In other words, the Administration never did the work, waited until the last minute, and now wants to fearmonger their way into entirely new rules for detaining and charging the prisoners at Guantanamo. The reason they want quick legislative action is to stop the court from its march toward justice, which would prove them to be incompetent and dangerous (one of the judges, Royce Lamberth, was unsparing in his remarks today). But the real reason is to find a political issue, scare the bejeezus out of everyone about it, and expand executive power by using the elections as a fulcrum point. Democrats ought not to be stupid enough to fall for this again, but I put nothing past them.

Oddly enough, Mukasey is appearing on Capitol Hill again Wednesday, so lawmakers can give him an earful about this if they wished.