Michael Mukasey is unhappy

Attorney General Michael Mukasey is unhappy about losing the first two Guantanamo habeas corpus reviews. Yesterday's defeat was especially galling because the judge responsible for saying that the government's evidence against the prisoners was garbage, Richard Leon, is himself a reliable Republican partisan. In fact Leon's on record as being opposed to giving habeas review to Gitmo prisoners at all. Things must look pretty bleak for the Bush administration's Cuban dungeon policy when they're losing cases even before staunch national-security ideologues.

So today in the Republican propaganda flagship, the Wall Street Journal, Mukasey issued a call to action. Congress, he believes, needs to act quickly to pull Bush's ashes out of the fire. Otherwise courts will continue to interpret literally the Supreme Court's ruling (Boumediene v Bush) that Gitmo prisoners may appeal for their release – by actually releasing those prisoners!

Of course Mukasey's opinion is essentially worthless. He's the man who still can't determine whether waterboarding constitutes torture, and doesn't care to find out. But what is he up to in this op-ed?

Well, the illustration that accompanies his piece speaks volumes about the intent. It portrays a robed federal judge gaveling flagrantly unreconstructed terrorists out through the gates of Guantanamo. In other words, the existence of habeas reviews (despite SCOTUS) are per se a national security breach that needs to be closed.

Mukasey can't quite bring himself to ask that Congress overrule SCOTUS, however, so he argues instead that it's the (inevitable) lack of uniformity in court findings that endangers the country. You'd have thought that the possibility of judicial differences of interpretation was an argument against the courts hearing any kinds of cases whatever. But no, apparently it's just a concern when the cases concern the rights of prisoners held at Gitmo for years without trial. Here's Mukasey's lament:

But as different judges reach different answers -- and as some of those answers, I fear, create risks for our national security -- there remains a pressing need for Congress, working with the administration, to establish one set of rules that is both consistent with the Supreme Court's decision and recognizes the important national security and intelligence interests of the United States.

The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an "enemy combatant" during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee "released"? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won't accept him or because we fear he might be mistreated upon his return?

The answer to the last question already was established by Judge Ricardo Urbina's ruling on Uighur prisoners: yes. As for what "release" means, that's just another way of saying Congress should prohibit the release of prisoners into the US. But Urbina was ruling on prisoners that the US admitted were not enemy combatants, and he ordered their release into the US because he and the administration could identify no other place they could be released to. Congress cannot legislate to prevent a judge from enforcing a prisoner's right to release just because some people wouldn't care to see it happen. So that part of Mukasey's appeal to Congress is asinine.

Furthermore, the Bush administration already defined "enemy combatant". Their definition was "anybody we say is an enemy combatant". It's the fact that their definition turned out to be unsatisfactory that now requires judges to determine whether these prisoners really are "enemy combatants". Is Mukasey really suggesting that Congress can step in to define away the 'problem' of the courts investigating whether the government may continue to hold people as "enemy combatants"? Unless it's a self-policing definition, one that leaves no room for interpretation, then it will still come down to a judge determining whether the government has evidence to show a prisoner is an enemy and a combatant. Again, it's asinine for Mukasey to suggest that the problem is Congress has never donned its lexicographical cap.

Ah, but there's still this question buried in Mukasey's plaint:

What evidence may the government rely on when making that determination?

That's what Mukasey is really aiming at in this op-ed. Forget the other distractions. What Mukasey hopes is that Congress can be persuaded to rewrite the rules of evidence in these cases. In other words, he wants to preserve some of the kangaroo-court quality that was built by the Bush administration into the tribunals and commissions at Guantanamo. The rest of Mukasey's op-ed repeatedly returns to the question of how to bolster the administration's power with regard to evidence.

But even with his real goal out in the open, Mukasey continues to camouflage it. In particular, he complains that federal courts aren't able to handle the government's evidence. Thus he'd have us believe it's not the ridiculous lack of evidence that keeps causing the government to lose these habeas cases. No, according to Mukasey it's just the inability of the courts to know what the government knows. So presumably the right of these defendants to know the evidence against them needs to quashed by Congress.

More importantly, in many cases, the government has faced great difficulty in collecting and presenting evidence in a manner that protects the vital sources and methods upon which our national security depends. Indeed, lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court.

All this ignores the plain fact that federal courts have long been permitted to adopt special measures to review secret evidence. Mukasey's evidentiary crisis is a non-issue...another distraction.

Let's look at his conclusions, the three things he calls on Congress to do:

1. Prevent release of prisoners into US. As noted, a non-issue because it's infeasible.

2. Devise new rules for using classified evidence in court. As noted, a non-issue.

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.

Devising a legal framework to review our military's detention decisions is an unprecedented challenge. It should not be left to the courts alone.

Bingo. Mukasey's really calling on Congress to create yet another kangaroo court system that will look a lot like federal court, but not actually be permitted to act independently or "interfere with the mission of our armed forces" or give the prisoners, you know, real trials.

Mukasey must figure that if Congress was daft enough to make him Attorney General, then it's capable of falling for any line of nonsense he dishes out.

crossposted at unbossed.com