Mukasey's Attempted Legislative End Run Around the Courts: Part I
[This is the first half of an article examining Attorney General Mukasey’s recent call for Congress to enact legislation governing Guantanamo detainee’s habeas court proceedings. The second half will be published here.]
Attorney General Mukasey called for a third round of legislation to ensure that the federal courts will never force the Bush administration to explain why they have held our clients in Guantánamo for over six years. The first two rounds of legislation followed losses in the Supreme Court, in Rasul v. Bush and Hamdan v. Rumsfeld, and this recent push comes after yet another loss, in Boumediene v. Bush. Each Court decision repudiated the Bush administration’s attempts to keep Guantanamo detainees out of court.
Mukasey’s complaints and legislative proposals, outlined in a speech before the American Enterprise Institute and in testimony before Congress, are another attempt to drag us into years of further delays in these cases. This article examines his arguments, one-by-one, to go beyond the administration’s rhetoric.
“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.”
This is a red herring that appeals to fear instead of reason. So let’s start with the facts. Although detainees are traditionally brought to witness their habeas hearings, it has already been suggested that the easiest way to take detainee testimony is to set up video-links or have judges and lawyers travel to Guantanamo. When warranted, federal judges have traveled outside their districts to receive testimony.
What is really going on is that 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 Senator McCain had suggested as one means to close Guantanamo. While the security concerns are ludicrous, legislators are responsive to these NIMBY concerns, as reflected by a 94-3 Senate vote against McCain’s proposal. By listing this issue as his “most important” concern, Mukasey is hoping to capitalize on that same legislative reflex.
Perhaps the administration is actually worried that a detainee’s attendance at hearings may facilitate his making an asylum claim. That is a concern not for security but for embarrassment — a fear that the court process may reveal that one of the “worst of the worst” was actually an innocent asylum seeker whom we have imprisoned for six-plus years. Mukasey is right to be worried: some of the most spectacular innocence claims also involve clients — the Chinese Uighurs — who the State Department acknowledges cannot be sent to their home countries, and thus need asylum.
“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.”
This canard is an attempt to insinuate that the courts cannot be trusted in matters of national security. The reality is that 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 (CIPA). The Attorney General’s proposal was 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 real evidence.
The administration has in the past relied on two examples where federal court proceedings supposedly made public information that then fell into the hands of terorrists, but both are bogus and have been expertly demolished in this report by two former New York prosecutors (see pages 88-89).
Attorney General Mukasey mentioned the first when he claimed the “law required” that a list of unindicted coconspirators in the 1993 World Trade Center bombing trial be “turn[ed] over to the defense.” The prosecutors in that case never sought to seal the list from public view or otherwise place restrictions on its dissemination by the defense — making claims of the list’s significance, and of the failures of the courts and the CIPA system all seem overblown.
The second is the claim that the East African Embassy Bombing trial revealed that the feds knew about a satellite phone Bin Laden had used in the past. The implication, were it true, is that bin Laden got wise in light of the trial and stopped using the phone. In fact the phone had long since gone dead by the time of trial.
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 truth is that the military has made the most notorious slip-up: they handed out a classified document to members of the press during the commission trial of Omar Khadr. We should be thankful for this leak: the document showed that 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.
“Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes.”
As Mukasey himself notes, the first federal judge to deal with this question refused to halt preemptively the first military commissions proceeding (for Salim Hamdan), instead preferring to let it implode on its own.
What little momentum the commissions process has at this point is driven by the administration’s desire to move these cases forward using evidence obtained by torture. Mukasey’s Justice Department subordinates have argued that the habeas courts should stay their own proceedings while permitting the commissions process to go forward. Such a rule would give the government a special incentive to charge men who might otherwise bring evidence of their torture before their habeas judges.
There are other problems sapping the proceedings of legitimacy: the government wants to apply criminal charges created by the MCA to times before the law existed. The charges of conspiracy and material support, the most frequently used provisions of the MCA, have never been recognized as offenses against the common law of armed conflict, and thus create an ex post facto (retroactivity) problem since the statute applying the charges to the detainees was passed in 2006, well after they were captured.
It’s worth noting that the globally-acknowledged legitimacy of our full trials of the embassy bombers and other Al Qaeda linked conspirators during the 1990s — in ordinary federal criminal courts here in New York City — 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. To proceed with ex post facto prosecutions based on the fruits of torture would further taint American credibility and limit our options in the future.