Mukasey Says Military Commission Trials Will Proceed

By Jeralyn, Section Terror Detainees
Posted on Fri Jun 13, 2008 at 07:15:00 AM EST
Tags: detainees, military commission trials (all tags)

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Attorney General Michael Mukasey, speaking in Tokyo today, said the Supreme Court's decision yesterday upholding the rights of detainees to challenge the determination they are enemy combatants will not affect the upcoming Military Commissions Act trials.

[Mukasey] said he was disappointed with the decision because it would lead to "hundreds" of detention cases being referred to federal district court.

"I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed," he said. "Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."

There are several levels of detainees at Gitmo. Most have been held for years without charges. A small group have been charged with crimes, including offenses punishable by death. Their trials are by military commission, the rules of which are, in my view, unconstitutional.[More...]

The value of yesterday's decision was in its clear statement that after a combatent review board found a detainee to be am "enemy combatant", he has to be able to challenge that designation in a federal court. The Supreme Court agreed that if the review of the board's decision was overturned, the individual is not an enemy combatant, he could have to be ordered release.

The Supreme Court also held that the reviewing federal court can now consider new evidence not presented at the review board hearing.

President Bush is unhappy with the decision and says new laws may be needed to get around the Supreme Court's ruling.

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Mukasey Says Military Commission Trials Will Proceed | 10 comments (10 topical)

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At least the Bush Administration (none / 0) (#1)
by Newt on Fri Jun 13, 2008 at 02:08:06 AM EST

won't be able to leave the Guantanamo mess for the next president to clean up. Executive accountability means one more big embarassment for the Republicans before they're fired this fall.

I wonder how this ruling applies to non-citizens (none / 0) (#2)
by Mark Woods on Fri Jun 13, 2008 at 06:35:34 AM EST

since my European friends have mentioned that they (potentially) could 'be arrested on a simple tourist visa violation, held incognito, and not permitted counsel' if the Terrorist Detention bill passed by Congress (and subsequently made moot by this ruling) were taken to its logical conclusion.

Is there any truth to this, and does the new ruling cancel this prospect? In other words, do the Hab. Corpus rights denied to ALL non-citizens (enemy combatants, illegal and transitional immigrants, tourists, exchange students, etc.) become restored under this ruling, or does it only apply to folks in Gitmo?


My take (none / 0) (#3)
by Carolyn in Baltimore on Fri Jun 13, 2008 at 07:12:21 AM EST

The attorneys here can be clearer but I believe it should cover all non-citizens held on US soil. It specifically defines Gitmo as being in the US for purposes of rights. The ruling clarifies that all held on US soil have habeas corpus rights to challenge their detention.
OK - please correct me.


Non citizens (none / 0) (#5)
by jsj20002 on Fri Jun 13, 2008 at 09:06:26 AM EST

The Bush Administration, and now John McCain and Lindsay Graham, continue to say that the right to have an independent court review the legality of a detained individual's confinement protects only U.S. citizens. The Supreme Court clearly put that back in the dustbin of history where it belongs. Many, perhaps most, of those residing in the U.S. when "We, the People" adopted the Constitution were not U.S. citizens -- many were native Americans, slaves, indentured servants, former British loyalists, and recent immigrants -- but no one ever claimed those people had no rights under habeas corpus to contest their confinement. Alas, the general public suffers from the delusion that the Constitution "grants" our civil rights and only grants them to U.S. citizens, when the real fact of the matter is that all peoples' civil rights predate the Constitution. Everyone should know that the Constitution was drafted specifically to limit the ability of the executive branch to trample on anyone's civil rights. In truth, the President of the United States has no inherent power in either war or peace; the President has only the powers enumerated in Article II of the Constitution.


The 14th Amendment settled that long ago. (none / 0) (#8)
by wurman on Fri Jun 13, 2008 at 10:15:16 AM EST

Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This clearly differentiates among persons & citizens & specifically recognizes which things apply ONLY to citizens & other things that apply to each & every individual, specifically due process & equal protection. Sheesh!


: Fourteenth Amendment (none / 0) (#10)
by jsj20002 on Fri Jun 13, 2008 at 05:56:43 PM EST

The 14th Amendment imposed limitations on state governments. It did not restrict the rights of non-citizens to have their day in court.

What a wicked web they weave. . . . (none / 0) (#4)
by wurman on Fri Jun 13, 2008 at 08:13:45 AM EST

Boumediene v. Bush

It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.

Is AG Mukasey being obtuse or defying the court order?

Does each individual detainee have to file a separate appeal for habeas, or does this order apply to the entire "class" of prisoners as detained?

Why would the Justice Dept. make decisions in reference to the Guantanamo group when it is, in absolute fact, a military procedure from start to finish?

As near as I could ever determine, these are Courts Martial & they don't involve lawyers from justice or civilian judges until the review process (District Court? Court of Appeals?), so is Mukasey inserting his "opinions" into an issue that is not on his agenda?

And, finally, the obvious, why would so-called military tribunals proceed with effort, expense & time on a case if the DC District Court has not yet determined whether the detainee is being legally held?

On the narrow issue (none / 0) (#6)
by eric on Fri Jun 13, 2008 at 09:52:53 AM EST

of why Mukasey even thinks this involves him...

The easy answer is that it doesn't. He is the AG.

The problem is that this entire administration so intermingles politics, ideology, and cronyism behind a singular ideal of US v. THEM, that Mukasey doesn't even really see why it is ridiculous for him to comment on this. We might as well hear from the Secretary of the Interior, who would surely agree, as well.


: Yes. I really don't get it about Mukasey. (none / 0) (#7)
by wurman on Fri Jun 13, 2008 at 10:03:51 AM EST

I used to have excellent knowledge about the UCMJ & its extremely well defined procedures.
The Dept. of Justice & the Attorney-General are not in that loop at all.
SecDef Gates is the cabinet official with go-to status here--in a way, but not really. The actual path is through the Judge Advocate General & the Court of Appeals for the Armed Forces. Perhaps, however, this chain of command is inoperative because Bu$h xliii "deciderated" that the detainees are not prisoners of war.
And it was my understanding, later, that Hamdan re-routed handling of the detainees to the DC District Court. Who knew???

Someone should ask Mukasey (none / 0) (#9)
by Belswyn on Fri Jun 13, 2008 at 01:08:12 PM EST

when he thinks that hundredth trial will be completed. At the present rate, it actually won't represent too much of a load on the courts at all. :)