- Along with other past and present administration officials,
Attorney General Michael Mukasey supports lawlessness and police state
justice. Weeks after the Supreme Court's landmark (June 12) Boumediene
ruling, he addressed the conservative, pro-war American Enterprise Institute
(on July 21) and asked Congress to overrule the High Court - for the third
time. His proposal:
- -- subvert constitutional and international law; -- authorize
indefinite detentions of Guantanamo and other "war on terror"
prisoners (including US citizens designated "enemy combatants");
- -- deny them habeas rights, due process, and any hope
for judicial fairness.
- Since June 2004, the (conservative) High Court made three
landmark rulings. Twice Congress intervened, and Mukasey wants a third
time. In Rasul v. Bush (June 2004), the Court granted Guantanamo detainees
habeas rights to challenge their detentions in civil court. Congress responded
with the Detainee Treatment Act (DTA) of 2005 subverting the ruling.
- In June 2006, the Supreme Court reacted. In Hamdan v.
Rumsfeld, it held that federal courts retain jurisdiction over habeas cases
and that Guantanamo Bay military commissions lack "the power to proceed
because (their) structures and procedures violate both the Uniform Code
of Military Justice and the four Geneva Conventions (of) 1949."
- In October 2006, Congress responded a second time. It
enacted the Military Commissions Act (MCA) - subverting the High Court
ruling in more extreme form. In its menu of illegal provisions, it grants
the administration extraordinary unconstitutional powers to detain, interrogate,
torture and prosecute alleged terrorist suspects, enemy combatants, or
anyone claimed to support them. It lets the President designate anyone
anywhere in the world (including US citizens) an "unlawful enemy combatant"
and empowers him to arrest and detain them indefinitely in military prisons.
The law states: "no (civil) court, justice, or judge shall have jurisdiction
to hear or consider any claim or cause for action whatsoever....relating
to the prosecution, trial or judgment of....military commission(s)....including
challenges to (their) lawfulness...."
- On June 12, 2008, the High Court again disagreed. In
Boumediene v. Bush, it held that Guantanamo detainees retain habeas rights.
MCA unconstitutionally subverts them, and the administration has no legal
authority to deny them due process in civil courts or act as accuser, trial
judge and executioner with no right of appeal or chance for judicial fairness.
- On July 21, Mukasey responded, and immediately the ACLU
reacted in a same day press release headlined: "Attorney General Wants
New Declaration of War Allowing Indefinite Detention and Concealment of
Torture." It called Mukasey's speech "an enormous executive branch
power grab....authoriz(ing) indefinite detention(s) through a new declaration
of armed conflict." He asked Congress to redefine habeas through legislation
"that will hide the Bush administration's past wrongdoing - an action
that would undermine the constitutional guarantee of due process and conceal
systematic (lawless) torture and abuse of detainees."
- Like his two predecessors, Mukasey mocks the rule of
law and supports harsh police state justice. He wants Congress to "expand
and extend the 'war on terror' forever" and let the president detain
anyone indefinitely without charge or trial. ACLU's Washington Legislative
Director, Caroline Fredrickson, called this "the last gasp of an administration
desperate to rationalize what is a failed legal scheme" - that the
Supreme Court thunderously rejected three times.
- Mukasey proposes lawlessness and cover-up, "but
there is no reason to think that Congress will assist him." It "won't
fall for this latest (scheme) to (suppress) its wrongdoing." Besides,
the House Judiciary Committee is now investigating whether high-level administration
officials authorized torture and abuse. Mukasey wants to hide it and is
asking Congress to "bury the evidence."
- The ACLU is righteously outraged by this latest attempted
power grab. It rejects Mukasey's lawlessness and states there is "no
need to invent yet another set of legal rules to govern the detention and
trial of prisoners held on national security grounds, and the rules that
(Mukasey) is proposing are fundamentally inconsistent with" constitutional
and international law.
- The Center for Constitutional Rights (CCR) Responds
- After Mukasey's September 17, 2007 nomination for Attorney
General, CCR issued the following November 1, 2007 statement:
- "Michael Mukasey is not fit to be Attorney General
because he supports torture, illegal spying on Americans, and limitless
powers for the Executive Branch." As the "country's highest law
enforcement official," he's obligated "to enforce the law"
- not make excuses for the government when it's in violation. CCR stands
"firmly against Mukasey's nomination....Our country cannot afford
to make compromises to our laws, our morals, and our humanity any longer."
The Senate must reject Attorney General candidates who'll "undermine
American justice and shred the Constitution."
- CCR expressed equal outrage on July 21. Its Executive
Director, Vincent Warren, denounced Mukasey's proposal in the following
- "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" in Boumediene v. Bush and its two prior
rulings. "For six and a half years," the administration and Congress
"have done their best to (deny due process) and 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."
- For the past six years, CCR litigated for Guantanamo
detainee rights and continues to do it. It organized and coordinated over
500 pro bono lawyers for everyone held there illegally. Most recently,
it represented plaintiffs in the landmark Boumediene v. Bush case - argued
on December 5, 2007 and ruled on June 12, 2008.
- The Wall Street Journal Reports and Editorializes
- Its July 22 article states: "Mukasey Seeks Law on
Detainees - Congress Is Urged to Limit Rights of Terror Suspects....in
light of a rebuke by the Supreme Court." It quotes Mukasey wanting:
- -- legislative "principles" for "practical"
limits on the right of detainees to challenge their incarceration;
- -- Congress to give the administration freedom to detain
combatants "for the duration of the ('war on terror') conflict;"
- -- a "reaffirmation of something that was enacted
in legislation after September 11, 2001" (a menu of harsh repressive
- -- no "enemy combatants" released in (or brought
to) the US (even to appear in civil court);
- -- no intelligence (or harsh interrogation) methods revealed
(so evidence of torture and abuse is suppressed), and
- -- military officers (and intelligence officials) to
be excused from testifying (because what they know is damning).
- On its editorial page, the Journal is supportive. It
called Mukasey's proposal "modest" on a "difficult"
issue over which "different judges even on the same court will disagree."
Mukasey wants congressional "guidance" because there's risk of
"inconsistent rulings and considerable uncertainty."
- According to the Journal, Mukasey "was right in
stepping forward to say that someone has to take responsibility for the
consequences of the Supreme Court's 5 - 4" Boumediene ruling. It wants
"Congress (to) give one court jurisdiction over (all detainee) cases"
and not let the process "bog down into a Babel of conflicting procedural
and legal rulings." Mukasey is "right" to ask Congress to
settle the issue, (regardless of three landmark High Court rulings). In
- -- constitutional and international laws don't apply;
-- judicial fairness is a dead letter;
- -- presidential power is supreme; and -- Congress must
support the executive and overrule the highest court in the land....A "modest
(police state) proposal" according to the Journal and one it clearly
- Stephen Lendman is a Research Associate of the Centre
for Research on Globalization. He lives in Chicago and can be reached at