Mukasey 's Plan for Congress to Delay Gitmo Habeas Proceedings

In a speech today (text here), Attorney General Michael Mukasey called on Congress, rather than federal judges, to make the rules for detainees filing habeas challenges.

The Center for Constitutional Rights responds:

“What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays. The Supreme Court has definitively spoken, and there is no need for congressional intervention. The Supreme Court explicitly said in Boumediene that the two prior attempts by Congress to intervene to prevent detainees from having access to the courts were unconstitutional.

“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. Congress should be a part of the solution this time by letting the courts do their job.


Human Rights First takes issue with some of Mukasey's statements about classified information.

The LA Times points out Mukasey continues to carry the Bush Administration's water.

He wasn't saying the court decision should be ignored. His point was to find a way of keeping the prisoners at Guantanamo while their court cases proceed.

"Congress should make clear that a federal court may not order the government to bring enemy combatants into the United States" to attend court proceedings, he said. It is with just such issues that Mukasey's reputation as attorney general is likely to rest.

The Washington Post noted that he has "rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects." And, it observed, he decided not to revisit the question of whether a public corruption case criticized by 52 bipartisan state attorneys general was a matter of "selective prosecution" -- meaning that politics played a role in the decision to prosecute.

Mukasey's speech comes in the aftermath of the Supreme Court decision in Boumediene v. Bush:

On June 12, 2008, the Supreme Court ruled in an historic decision in Boumediene v. Bush/Al Odah v. United States that the detainees at Guantánamo Bay have a constitutional right to habeas corpus, to challenge their detention before a neutral judge in a real court. The men at Guantánamo have been struggling for this basic right to be recognized since 2002, when the first prisoners were brought to Guantánamo Bay, and when the Center for Constitutional Rights’ first challenge to their detention was filed.

In 2004, in Rasul v. Bush, the Supreme Court upheld the detainees' statutory right to habeas corpus, and in 2006, in Hamdan v. Rumsfeld, the high court rejected the Bush administration's framework for military commissions and upheld the rights of the detainees under the Geneva Conventions.

CCR has this factsheet on Boumediene.

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    Now That's Timing (none / 0) (#1)
    by The Maven on Mon Jul 21, 2008 at 03:01:34 PM EST
    I was just reading Lyle Denniston's summary of the Mukasey plan over at SCOTUSblog, and was wondering if anyone here was going to cover it as well (and if not, I would have dropped the link into the open thread).  I'm glad that you were already on the case!

    I would have to hope, by the way, that even the craven Democrats in Congress who seem all-too-eager to give lame-duck Bush whatever he wants will recognize that there is no reason to rush forward to "correct" the "overstepping" by the Court stemming from the Boumediene ruling last month.  The last time they acted in this regard, the result was the abysmal Military Commissions Act of 2006.  We cannot afford another such piece of fundamentally damaging legislation; Congress must be made to understand this.

    but but but (5.00 / 1) (#2)
    by cawaltz on Mon Jul 21, 2008 at 03:21:56 PM EST
    then they'll be called names like "terrorist lover."

    Heck I expect them to cave on this faster thaqn they did on telcomm immunity.

    Heckuva job Dems on the Mukasey pick.


    Whose Legislation? (none / 0) (#3)
    by cboldt on Mon Jul 21, 2008 at 05:11:43 PM EST
    The MCA isn't really that much a critter of Congress, as it was Congress passing what the administration demanded.

    Congress doesn't have the stomach to step back into the fray on this.  It's proven it value - which is negative.  I'm surprised Congress has any "approval" rating at all.


    Jeez, they have a "9" approval rating (none / 0) (#6)
    by wurman on Mon Jul 21, 2008 at 09:38:49 PM EST
    The Plague has a 10 because of goths who want lots of people to die.

    Before George Carlin died, hurricanes & typhoons & tornadoes & earthquakes & volcanic eruptions had 12 to 15 ratings because he "rooted" for them to set new records--although he abandoned the total misanthropy in his last couple of years.

    Even gonorrhea has about a 20 rating because most people "get lucky" in order to catch it.

    Same way we "get lucky" with congress.  Ouch!


    Congress has, basically, been rewriting (none / 0) (#4)
    by shoephone on Mon Jul 21, 2008 at 06:21:10 PM EST
    the U.S. Constitution with all of these bend-overs to the Bush Administration. The Dems have repeatedly abdicated their responsibility of oversight, the "check" on the executive branch -- not to mention, actually representing the interests of the American people.

    Hey, who needs a transparent process of constitutional amendments and conventions with the Pelosi/Hoyer/Reid/Rockefeller Democrats in power? And that pesky Habeas Corpus thing -- it's only been the standard since 1305, England. But apparently, rule of law is just sooo pre-9/11.

    Wow. (none / 0) (#5)
    by Paprika on Mon Jul 21, 2008 at 08:53:46 PM EST
    Never mind being an adult, Omar Khadr will be a senior before his case is concluded either way.

    Terrorist? (none / 0) (#7)
    by Turbulent Confusion on Tue Jul 22, 2008 at 11:52:06 AM EST
    Whether we like it or not, the treatment of these enemy combatants will be remember by other groups for a long time to come.  The moment they stopped fighting and went to our version of the Hanoi Hilton they became enemy combatants, captured.  Easier term is POW.  A prisoner of war is protected under the Geneva Accords, and several other international agreements.  Our Congress, nor our president have any jurisdiction over any of these people.  This is the damning affect of what has happened over the years of making the military the arm of the politico in American.  

    These prisoners are not tied in any way to our laws, whether they attacked us in a plane, or on the battlefield.  If they are bona-fide enemy combatants, then we have to use International Laws against them.  As a country, we have no honor if we continue to suppose that our law is the law of the earth.