Mukasey Asks Congress to Resolve Boumediene Issues Instead of Courts

Boy, for a guy who was, not long ago, an Article III Court judge, Attorney General Mukasey sure has scant respect for Federal judges. In a speech to AEI today, Mukasey calls on Congress to get the Administration out of its most difficult quandries as a result of the Boumediene decision. Here’s an excerpt from his speech, with my editorializing:

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.

I love (as in, despise) the way Attorney General Orwell uses court security costs to rationalize indefinite detention even after Boumediene. His logic: if we bring an "enemy combatant" into the States, it’ll cost a lot. So "enemy combatants" can’t face their accusers in DC District Court. And that means that an "alien captured and detained abroad during wartime" cannot be released into the US. Of course, if it came to the point of releasing someone, that would be because the US could not prove that, in spite of the fact the person had been held as an "enemy combatant" for up to 7 years, once that person finally had a habeas review, a Court decided he was not, in fact, an "enemy combatant" but instead someone the government probably shouldn’t have been holding. Some might call that a "mistake"–a very ugly, costly mistake. The implication is, of course, that we might have to release the person into the US because no one else would take him (which is part of the reason we can’t release a lot of the people we’ve got in Gitmo who have already been determined not to be "enemy combatants"), then we would just have to keep him detained because we could not release him into the US. Not because he was dangerous, mind you, or because of court security costs, but because we made a horrible, costly mistake.

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.

Shorter Mukasey: It’s Andrew McCarthy’s and Patrick Fitzgerald’s fault that we haven’t captured Osama bin Laden. Mukasey pretends, first of all, that OBL didn’t already know we were hip to his evil ways. Now, to be fair to Muaksey, he doesn’t say explicitly what his statement implies–that the detainees shouldn’t get the info against them. But that is the ultimate implication–that Mukasey would like Congress to invent new ways to prevent the detainees from seeing (or even their attorney’s from seeing) the evidence against them.

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.

Shorter Mukasey: Yeah, we took 6 years to get around to charging KSM, but anything that happened now would constitute a delay. And that’s a delay that would postpone our show trials until after the election, which makes it, therefore, an unacceptable delay.

What Mukasey doesn’t admit, of course, is that the standard for evidence in the habeas hearings will be higher than that for the Gitmo Show Trials, which is likely one of the reasons he doesn’t want habeas to "delay" the Show Trials.

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.

Shorter Mukasey: As we did successfully with torture and illegal wiretapping, we want Congress to retroactively rubber stamp Bush’s illegal declarations–particularly as it regards the Taliban, who just happens to be resurgent in Afghanistan because Bush withdrew resources from Afghanistan to fight his optional and illegal war in Iraq.

I hope Russ Feingold is as apoplectic about this request as I am…

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.

Now, I’ve got a request for comment in with Judges Hogan and Lamberth, who have been proceeding in very orderly and timely fashion in the DC District Court to make sure they "eliminate[d] the risk of duplicative efforts and inconsistent rulings." But as a regular old citizen, I’m aghast that Mukasey directed this request to Congress, and not to them, during the hearings currently proceeding at Prettyman. If Mukasey can’t win this argument before Judge Hogan, then there’s probably a reason he can’t win it, and the effort to go to Congress again to bypass rule of law is just plain insulting.

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

Here’s the main kernal of Mukasey’s panicked speech. First of all, the claim that we keep "enemy combatants" for safety reasons flies in the face of all of the evidence flooding out that, in fact, we keep "enemy combatants" to try to get intelligence out of them. And one of the things Mukasey is rationalizing here is keeping detainees in permanent limbo, with no final resolution. Since these guys believe that they get better data when the detainees undergo learned helplessness, it is understandable why Mukasey wants to keep these folks in their indefinite limbo. Also, Mukasey doesn’t mention that two people whom the US alleges were solidly members of the 9/11 plot–Abu Zubaydah and al-Qahtani–but who cannot be tried because our illegal interrogation methods have turned these men into vegetables and because a trial would expose the fact that the torture against both started before the official approval for that torture came through. But that’s another reason why Mukasey wants to be able to keep people indefinitely–so the evidence of the torture that Bush, and only Bush, approved does not become public.

Sadly, Mukasey knows he’s got a really compliant Congress going into an election seasons, a Congress which has shown absolutely no ability to withstand requests like this, even if they are transparently designed to help the Administration avoid consequences for its actions.

And, I can’t help but notice, Mukasey’s timing of this, two days before he visits HJC, also means that Mukasey will likely face fewer tough questions about DOJ’s other obstruction in that hearing.

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  1. AlbertFall says:

    Congressional Dem leadership were co conspirators on illegal wiretaps, and retroactive immunity was passed to protect them.

    Unless there is something we don’t know, the Dem leadership does not need retroactive immunity to escape culpability on Gitmo.

  2. bell says:

    >>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.

  3. LS says:

    Mukasey’s “official duties”:

    Bushco = Torture Advocate – check
    Bushco = Spying on Americans – check
    Bushco = War Crimes – check
    Bushco = Traitors – check
    Bushco = Obstructing Justice – check
    Bushco = Outing covert CIA agent – check

    Mukasey is aiding and abetting the domestic enemy to the people…the dictatorship that is trying to takeover the country. He is a traitor to America.

  4. bell says:

    only half my post got posted.. try again – >>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.

    too bad he doesn’t feel the same imperative with regard to cheney for outing a cia operative and blowing a wide hole in ‘intelligence gathering’. the guy is full of it…

      • klynn says:

        I enjoy when someone is confronted with a counterpoint made on one’s own thinking…Makes it hard to take a consistent stand…You’ve him backed into a corner with that point.

        Thanks Bell. I ditto Marcy.

  5. LS says:

    Mukasey will assure Bushco walks on everything….but he’ll be left holding the bag.

    Worst AG ever.

    Traitor.

  6. InnocentBystander says:

    “n fact, we keep “enemy combatants” to try to get intelligence out of them. “

    I think the primary value of the majority of these so-called “enemy combatants” is to provide the veneer of justification for the GWOT for domestic consumption. When these people have their day in court, it will be interesting to know what these dirt farmers and goat herders really can tell us about the financial/political networks of Al Qaeda.

    • Citizen92 says:

      Cynically, had Feith, Addington et al not been allowed to “take prisoners” and identify them as “enemy combattants” and bring them back for “interrogations” the USA would be in an entirely different place.

      Again, cynically, instead of having dead enemies on the battlefield, in the name of “beliefs” and “theories” those neocons were allowed to create this problem.

      Bush had his illegal war which did considerable damage overseas to standing perception and to the economy.

      But Addington, Yoo, Feith, et al are responsible for the collateral damage which has turned out to be a thousand times worse. All in the name of their “theories” and “beliefs.”

  7. klynn says:

    O/T sort of… Marcy, have you thought of updating your torture timeline with the US efforts to seek immunity and extradiction pacts back in 2002? As well as our removing of our signature on the ICC treaty?

    Some of this started before the Jan 20th 2002 memo of Bybee/Gonzo.

  8. Redshift says:

    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.

    It’s so hard because we’re fighting against supervillains who will be able to detonate bombs across the country with the force of their minds if we so much as bring them within our borders! I mean, they’ve “their ability and their desire to kill Americans,” so keeping them completely incommunicado and under heavy security can’t possibly stop them!

    If only I had a clue stick that I could whack these clowns with (and the 28 percenter clowns who believe them) to get across that they’re not in an action movie, and they’re lucky they’re not, because they wouldn’t be the heroes.

  9. scribe says:

    Very quickly, for something very subtle.

    This is of a piece with the Warran Christopher/James Baker “Serious people” balloon floated last week about reworking the War Powers Act. In short, at the present time in both Bushies’ wars of colonial aggression and his torture policies, he is acting either in direct contravention to what Congress has written and prior presidents have signed off upon. In other words, the “lowest ebb” of Presidential Power, as defined in Youngstown.

    It’s also no surprise that this has come up immediately after the FISA cave ratified his prior lawbreaking.

    If they can get Congress to sign off on this, all the evils they have wrought will be law. Or, like that old Doobies album title: “What were once vices are now habits.”

    This should never even get out of the hopper where they throw bills, so I guess it will be tacked on to one of the continuing budget resolutions this fall and passed on a voice vote.

    • bmaz says:

      I suspect that you are correct and that they already have their point men in Congress, Boehner and Hoyer, working on it and this is the “Presidential Request” that is the pretext for consideration. As they stated the last time, their theory is “If the President asks you to do it, you do it”.

  10. looseheadprop says:

    After what happened with FISA, I think Mukasey may verywell get what he is asking for. In fact, if you’re Mukasey, do you even bother making a speech like this unles you have some confidence that the fix is already in?

    Understand that Nancy Pelosi and Steny Hoyer did what theey did knowing that the American people opposed it. Obama however, was for it, under some misguided belief that he needs to piss off his base to win some swing votes. (I will never understand that).

    The legislation mukasey is propsing takes power out of the judicial branch and puts it in the executive branch. Do you think Obama’s gonna break a fingernail opposing that?

    It a freaking gift to him on a silver platter!

    • readerOfTeaLeaves says:

      Shorter Mukasey: It’s Andrew McCarthy’s and Patrick Fitzgerald’s fault that we haven’t captured Osama bin Laden.

      Yeah, let’s blame it on the lawyers.
      And what LHP said.

  11. rosalind says:

    did mukasey receive money for his speech today before AEI? amazing how chatty the muakseys/yoos/cheneys of the world are when appearing before rightwing thinktanks. giving testimony to the american people? not so much.

    mukasey’s last line of his speech: “Thank you very much, and I’ll be happy to take your questions.”

    did he answer any of them “i can’t recall”?

  12. WilliamOckham says:

    We need to name the fundamental lie in Mukasey’s speech:

    Although our right to detain enemy combatants in this armed conflict is clear, determining what, if any, rights those detainees should be granted to challenge their detention has been more complicated. This is not surprising, because the laws of war governing detention of enemy combatants were designed with traditional armed conflicts in mind. However, the President emphasized shortly after the attacks on September 11, 2001, the War on Terror is a different sort of war.

    Every part of this statement is a lie and central to this tragic farce. There is nothing new or unique about our conflict with al Qaeda, Afghanistan, or Iraq. The laws of war have explicit rules, embodied in the Geneva Conventions, the various Hague conventions, and other international treaties, that apply to all facets of armed conflict, including detention. These rules are binding on the U.S., no matter what the nature of our opponents or the sophistry of the administration’s denials. Our right to detain the vast majority of of the detainees is anything but clear. Or, rather, it is absolutely clear that we have no right to detain the vast majority of the detainees in Guantanamo, Afghanistan, Iraq, or our CIA Gulag.

    What is absolutely clear is that our country has been involved in a deliberate, sustained, and egregious breach of our international commitments and our own constitution since September 12, 2001.

    • bobschacht says:

      Agreed!

      The fundamental premise is part of the Republican psy-ops against the U.S. Constitution: “This is a different kind of war.” Anyone who says that (and it is the Administration party line) is just a doofus when it comes to military history. But it sure sounds good, and persuasive, in justifying all manner of unConstitutional, strong-arm tactics.

      Bob in HI

    • bell says:

      the bush admin used 9-11 to re-write the law… some bought it, some didn’t… i don’t think the international community has bought it, but a few hangers on are still buying it – muskasey included… the other part of the buy-in is the acceptance that all of these detainees locked away indefinitely are hardened criminals guilty of the crimes described.. if muskasey is going to assume that( it is built into his comments), then many of us on the other side of this argument are going to continue to maintain this admin is guilty usurping international law while writing laws to fit their corrupted outlook… i look forward to the day when they are held accountable… it looks to be a long ways out with obama taking over specifically for his failure on fisa… mccain as leader would be worse…

    • masaccio says:

      This points directly to the contradiction inherent in their lunatic position. We are at war with al-Qaeda. It is a real war, not a police problem. We fight with our army.

      They don’t have an army, just a bunch of people with guns and stuff. Since they don’t have uniforms, they aren’t entitled to protection of the Geneva Conventions. We are at war but they aren’t? I just can’t make this make sense.

  13. oldtree says:

    Do you think he gets a paycheck from organized crime all over the country, or just from his gop donors? Having so many traitors defies reason. That is, unless you realize what has been created under our noses.

  14. behindthefall says:

    My knee-jerk reaction? It is not a very long way from Mukasey’s position to a situation where you have improperly detained American citizens who are not allowed back into the country, and who knows what happening to citizens being ‘disappeared’ inside the country. Does he have Argentina-envy?

  15. FrankProbst says:

    What crap. They got themselves into this mess because they took prisoners of war and then said, “Wait, if we call them ‘prisoners of war’, then we have to follow the Geneva conventions. Let’s go with ‘enemy combatants’ instead.”

  16. Loo Hoo. says:

    I hope to someday understand WHY Mukasey took this job and WHY he is behaving as he is. BushCo must have something on him, or he’s about to become very, very wealthy.

    • FrankProbst says:

      I hope to someday understand WHY Mukasey took this job and WHY he is behaving as he is. BushCo must have something on him, or he’s about to become very, very wealthy.

      I think he’s a True Believer, in the mold of Dick Cheney.

      • looseheadprop says:

        I hope to someday understand WHY Mukasey took this job and WHY he is behaving as he is. BushCo must have something on him, or he’s about to become very, very wealthy.

        I think he’s a True Believer, in the mold of Dick Cheney.

        Nothing in his prior record or reputation would suggest that he is in the mold of Dick Cheney. To the contrary, he has a reputaion for beign a “by the book” sort.

        I am amazed by the instataneous trasformation he seemed to undergo. There is some backstory to this. I just don’t know what it is.

        • SparklestheIguana says:

          Nothing in his prior record or reputation would suggest that he is in the mold of Dick Cheney. To the contrary, he has a reputaion for beign a “by the book” sort.

          I am amazed by the instataneous trasformation he seemed to undergo. There is some backstory to this. I just don’t know what it is.

          Yeah, I agree he’s not a “true believer” like Barnacle. As he says in the AEI speech, the administration chose him because of his terror (counter-terror) background. He was probably just flattered to be noticed for his anti-terrorism courtroom skills, and like a little poodle, eager to repay his flatterers, the people who rub his ears and scratch under his chin.

        • bmaz says:

          It doesn’t take any skill to cravenly sit high on the bench hidden behind the black robe and violate every oath, legal rule, and canon of ethical and moral behavior by indefinitely detaining innocent people in the face of clearly exculpatory information and sanctioning torture and abuse. The man is a disgrace.

        • looseheadprop says:

          I think there is more to it than that. Mukasey started off his confirmation hearing process sounding and acting like himself.

          Then he had this meeting with a group of GOP snetors. After that his whole tone chnaged. It was like they did some kind of evil intervention or soemthing

        • phred says:

          So what do you think LHP — those Senators checked the NSA records and found what? A live boy or a dead girl?

        • SparklestheIguana says:

          Or did one of them just give him an unbelievably good b***job and whisper, “There’s more where that came from….”

        • phred says:

          Perhaps you are right — I am just always curious what exactly is the stick threatened or carrot offered when someone does a 180 like that. The live boy/dead girl was mostly snark, but it had to be significant whatever it was, don’t you think?

        • brendanx says:

          Here was emptywheel’s take a year ago on potential replacements for Gonzales:

          Michael Mukasey: Mukasey is the former senior judge in SDNY (so I’m hoping maybe our local expert on that area might pipe in with an opinion) and he sounds like–given the options–a pretty good choice. Most notably, Mukasey took a “split the baby” position on an early Padilla decision; he ruled that Bush could designate him an enemy combatant (a decision that did not stand on appeal), but he also insisted that BushCo had to allow Padilla to see lawyers. I suspect that his name has been forwarded by the Democrats, most likely Chuck Schumer, who has supported him for a SCOTUS appointment as well. Which probably means his name is floating out there solely because Democrats are floating it, and not because BushCo is giving it serious consideration.

        • looseheadprop says:

          Bedan,
          I have practiced before Mukasey. I’ve bee in the man’s courtroom and gotten rulings from him.

        • brendanx says:

          Since you’ve opened speculation on what might be personal motives, here’s mine: Maybe Mukasey just supports the war, and therefore Bush. Where one stands on the war explains most things in our politics and press these days.

        • brendanx says:

          I don’t want this to be taken as a provocation or a slur, but Mukasey is an Orthodox Jew who has been personally threatened by terrorists (link):

          Mukasey is most well-known for his involvement in several high-profile terrorism-related cases, including that of Jose Padilla, issuing material witness warrants post-September 11, and the trial of the “blind sheikh,” Omar Abdel Rahman, for trying to blow up the World Trade Center in 1993. In that last case, his Jewishness became a point of contention for the defense, which argued that that he should recuse himself because of his religion and support of Israel. The prosecution dismissed the request as ludicrous, as did Mukasey. As a result of that case, which ended with Rahman sentenced to life in prison, Mukasey and his wife spent the next decade trailed by a security detail to protect them from death threats. He then retired as a judge and returned to his New York law practice.

          I don’t think it’s that relevant — most Republican would have become cogs in this machine and obstructed justice to protect Bush — but I don’t think it’s irrelevant, either.

  17. FrankProbst says:

    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.

    You know, I’m willing to take the bait and defend the straw man here. The Supreme Court, at the very least, should “be able to” issue such an order. However, it’s worth noting that NO ONE has demanded that EVEN A SINGLE POW at Guantanamo be released into the US.

  18. looseheadprop says:

    One tiny nit to pick EW. Gitmo detainees would not necessarily have to be brought to Prettyman Courthouse to “confront” their accusers.

    As the new federal courthouses are being built they are all being wired for remote conferenceing. You can have a witness in Kansas “testify” in a case in Brooklyn by remote video conference. we had a very nifty CLE about it held in a courtroom and saw the system at work. It was possible to arrange things so witnesses and jurors all saw the same exhibits (via split screen). It would solve Mukasey—ooooh it’s so expensive problem.

    I realize that Prettymen is not retrofitted, but a judge can go to another courthouse to use it’s technology w/o the venue being legally changed.

    So, Judge ogan could travel to another federal courthouse (let’s say in Manhattan) that has this technology and borrow a courtroom. Legally, the case is still venued in DC, the site of the hearing merely moved.

    The detainee could remain at Gitmo and the detainee’s lawyers could be either at Gitmo or in Manhattan (for ACLU represented detainees, more likley there would be one in each place).

    This caould all hapen by simple court order from the presiding judge. You don’t need a statue to “enable” this. Also note that Mukasey is not asking for the creation of a new mechanism to create more flexibility for judges. He is asking for a Prohibition to give judges LESS flexibility.

  19. earlofhuntingdon says:

    Mukasey willfully confuses the distinction between being caught in flagrante delicto, on the battlefield in the act of violently engaging our troops, and the mish-mash of circumstances in which he apprehended or took control – and sometimes bought – his prisoners.

    One would think that the habeas proceedings ought to be completed before any “trial” on the merits. If there was no legal basis to detain a victim, there’s no legal basis to subject him or her to a trial.

    Mukasey, it seems, is also regurgitating the one percent solution argument from Ron Suskind’s book on Cheney. No matter how small the risk, it justifies unbridled government coercion and detention. Another way of saying that what the government does is so important, it should not be subject to any oversight or legal restriction.

    I’m pretty sure that’s what most sales people would say about their accounting and audit colleagues: “What we do is so vital to the company’s survival, you shouldn’t hold us to account for what we spend or how we spend it.” The idea that that would improve sales — or national security — rather than pad the pockets of the sales team and generate untold off-book liabilities seems laughable. But having chosen to become the sales’ teams consigliere, Mukasey seems committed to sell anything. Committed to practicing law? Not so much.

  20. PJEvans says:

    I wonder if this is connected with the Goopers’ ‘Enumerated Powers Act’ that they’ve introduced – in both houses of Congress – this week? It would require that every law include a paragraph saying under which of the enumerated powers it’s being passed. Just to make it really clear that they don’t think Congress has any real power ….

    • bmaz says:

      That’s hilarious. They ought to put one of the small yellow Post-It sticky notes on each bill saying nothing more than “It’s Our Article I power stupid”. Same as Bush effectively did with all his malicious acts supposedly done pursuant to his “Article II powers”. Asshats.

  21. SparklestheIguana says:

    OT – from today’s Froomkin:

    Michael Isikoff writes in Newsweek: “House Democrats were fuming recently when Karl Rove defied a congressional subpoena and refused to show up at a House Judiciary Committee hearing into whether he meddled in Justice Department prosecutions. Instead of grilling the former White House political chief under oath, the members found themselves talking to an empty chair. What they didn’t know is where Rove was that day: on a jet flying to a speaking engagement at Yalta, the historic Black Sea resort in Ukraine. Rove, who generally charges a reported $40,000 per talk, appeared on a premier panel (along with Democratic strategist Bob Shrum) on the upcoming U.S. election at the fifth annual conference of the YES Foundation, a confab of world luminaries bankrolled by billionaire Victor Pinchuk, the Ukrainian steel magnate and son-in-law of the country’s former autocratic president, Leonid Kuchma.”

    Why is it not surprising Karl travels with that nasty Shrum…..

  22. AZ Matt says:

    Russ does have comment on this:

    Fiengold to Mukasey – FU

    In a statement sent to RAW STORY, Senator Russ Feingold (D-WI) complains that “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,” Feingold’s statement continued. “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.”

  23. AZ Matt says:

    I hope Bush and Mukasey appreciate this:

    From TPM

    Foreign Secretary David Miliband told parliament in April he thought the technique, where a suspect is tied down on a board and water is poured over his or her hooded face in a form of simulated drowning, amounted to torture.

    U.S. President George W. Bush vetoed legislation in March that would have banned the CIA from using the technique.

    “Given the clear differences in definition, the UK can no longer rely on U.S. assurances that it does not use torture and we recommend that the government does not rely on such assurances in the future,” the MPs said in their report.

    What credibility? We don’t need no stinking credibility!!

    • looseheadprop says:

      A)They think they need one to retroactively immunize CIA agents who used torture and by extension, themselves.
      B) they think they will get one b/c they just got the FISA bill they wanted
      C)Yes, they are nuts. They torture people, sane folk don’t do that

  24. semiot says:

    “Judge” Mukasey – “Attorney General” Mukasey – has a very important role here. He’s the guy who sweeps up behind the elephants. It’s hard work, I tell ya.

  25. semiot says:

    An let me add, Mike “Sweeper” Mukasey, I think, deserves a round of applause from the parade goers.

  26. shawnfassett says:

    Thanks for posting about this. I caught a few mins before running out the door and couldn’t help thinking this dude is dumb as dirt.

  27. earlofhuntingdon says:

    Perhaps this is just Mukasey being a NY machine politician. Nearly the only group that polls below Cheney in popularity is Congress.

    Suggesting that the courts aren’t capable of, you know, judging, Mikey plays bash Congress by setting them up with a faux security issue they ought not address. If they do, Bush gets another freebie. If not, the GOP gets another Rovian stick with which to beat the Democratic majority.

  28. Leen says:

    I”m still having problems with calling “prisoners of war” (Geneva convention) “enemy combatants” or “detainees”. We are using the law breakers/makers law breaking language

  29. Nell says:

    so the evidence of the torture that Bush, and only Bush, approved does not become public

    Well, certainly Bush, but not only Bush: Rice, Rumsfeld, Ashcroft, Tenet, and whoever else attended the meetings of the Principals.