Shayana Kadidal / Mukasey: Congress Must "Urgently" Delay Guantánamo Cases

[Demeter]

http://www.huffingtonpost.com/shayana-kadidal/mukasey-congress-must-urg_b_114744.html


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....

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.

MUCH MORE AT LINK!