Constitutional Law

Mukasey's Attempted Legislative End Run Around the Courts: Part II

by Shayana Kadidal, head of the Guantánamo project at the Center for Constitutional Rights

[This is the second half of an article examining Attorney General Mukasey’s recent call for Congress to enact legislation governing Guantanamo detainee’s habeas court proceedings. The first half is available here.]

Attorney General Mukasey called for a third round of legislation to ensure that the federal courts will never force the Bush administration to explain why they have held our clients in Guantánamo for over six years. Mukasey’s complaints and legislative proposals, outlined in a speech before the American Enterprise Institute and in testimony before Congress, are another attempt to drag us into years of further delays in these cases. This article concludes my examination of his arguments, one-by-one, to delve beyond the administration’s rhetoric.

“Fourth, any legislation should acknowledge again and explicitly that the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations.”

This is a transparent response not to the Boumediene decision but rather to this summer’s decision in Parhat v. Gates, a summary judgment challenge brought by a Uighur detainee under the Detainee Treatment Act’s procedures for review. Even under the limited window for review provided under the DTA, the Court of Appeals found that there was no legitimate evidence that the detainee — a refugee from a Muslim minority in China’s far Western region — was ever associated with a group that was allied with the Taliban or Al Qaeda at the time of the 9/11 attacks.

Because Congress, acting immediately after 9/11, authorized the use of military force only against groups that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored” them, Mukasey knows that many of the detainees in Guantanamo will be freed if this standard is applied. So he wants Congress to allow the use of the armed forces — and the use of military detention – against anyone the President claims is linked to terrorism. No president should be handed this kind of unlimited power.

For one example of how far the administration is willing to stretch this kind of definition, examine the Defense Department’s accounts of released detainees who have “returned to the battlefield.” Among other false claims, DOD categorized several released Uighur detainees, shipped off to Albania days before a court hearing, as having participated in “anti-coalition militant activity” for having spoken to Tim Golden of the New York Times for a story about their miserable living conditions in the refugee camp there.

Similarly tarred were the Tipton Three, a group of released English detainees including Shafiq Rasul, the name petitioner in the 2004 Supreme Court case. Their “anti-coalition militant activity?” Participating in the making of Michael Winterbottom’s film The Road to Guantánamo. (The entirely false claim that thirty men have been released and returned to fight against the United States is debunked in this Seton Hall Law School report.)

“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.”

Along with hundreds of our co-counsel, I’ve just spent five weeks before two federal Judges in one court in Washington, D.C., ironing out the rules for the orderly progress of these cases. We have a schedule for the government to respond to our habeas petitions, and two neat stacks of status report summarizing where each of the 200-odd cases stand. By this Friday, we will have completed briefing on the question of what rules and standards should apply going forward. The cases are already in one set of courts, and the process is already moving along quickly and in an orderly fashion (despite the involvement of over 500 lawyers!). I suspect this is exactly what Mukasey doesn’t want to see happen.

The idea that “common legal issues [should] be decided by one judge in a coordinated fashion” is unworkable here. Any ex ante rule is likely to be too abstract to be helpful when applied in an individual case. Moreover, broad rules of general applicability, announced by a single coordinating judge, purporting to resolve questions germane to a large number of cases are precisely the sort of decisions that attract interlocutory review. Interlocutory reviews of the district court’s first general ruling in the wake of the 2004 Rasul decision were what led to the years of delay during which Congress passed the MCA. The government is undoubtedly keen to create circumstances allowing them to once again place all these cases on hold while some broad, abstract, and otherwise-useless general ruling from a coordinating judge vanishes into a black hole of appeals.

“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.” 

Before AEI, Mukasey did his best to propagate one of the greatest public misunderstandings about Guantánamo—the Myth of Battlefield Capture: “Now, the fact is that all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions . . . .” Nonsense. The Seton Hall Law School study of the military’s own CSRT records shows that only 4% of the detainees were captured on anything resembling a battlefield. Only 5% were picked up in the first instance by American forces. Far, far more were purchased for $5000-per-head bounties from hungry villagers, corrupt Pakistani police, rival clans or warlords. The “rights” paradigm is also nonsense.

Putting that to one side, as Senator McCain likes to say, “this isn’t about them, it’s about us.” We have judicial review not just to ensure that the rights of people in detention are protected, but also to protect the public interest by making sure the executive branch is doing a competent job in figuring out who to detain. We haven’t had much robust oversight by the courts over the last six years, and you see the results in terms of executive competence.

The Parhat decision chastised the government for relying on evidence that lacked the barest indicia of source or reliability: “The documents [relied on against the detainee] repeatedly describe those activities and relationships as having ‘reportedly’ occurred, as being ‘said to’ or ‘reported to’ have happened, and as things that ‘may’ be true or are ‘suspected of’ having taken place. But in virtually every instance, the documents do not say who ‘reported’ or ‘said’ or ‘suspected’ those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions . . . this court cannot assess the reliability of the assertions in the documents.”

Mukasey wants Congress to statutorily legitimate multiple-hearsay affidavits because he knows there is no way most of these detentions can be upheld if the affiants’ testimony is scrutinized.

“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.”

The first decision in the DTA cases was a panel opinion in Bismullah v. Gates, holding that the government had to turn over extensive information from its files in order to allow a detainee’s attorneys to ensure that the military considered everything in coming to its conclusion that the detainee was an “enemy combatant.” While the Supreme Court vacated the opinion for reconsideration in light of Boumediene, nothing in Boumediene undermines the core aspect of Bismullah: that the government must allow scrutiny of the full factual records purportedly justifying detention, including any exculpatory information the government possesses. The administration understandably is desperate to kill off this ruling, and repealing the DTA is now the easiest way to do it.

Ironically, Mukasey is calling on Congress to undo the scheme the administration concocted to kill these habeas cases in the first place. Moreover, the idea that this production will unduly burden the government because there are two avenues of review at work is patently absurd.

In the habeas cases, the government will presumably review all this information in the course of gathering or amending its factual returns; in the DTA cases, the government claims it produced all of this information to military panels (CSRTs) in the few months in late 2004 when it conducted almost all of the “enemy combatant” determinations. The government has repeatedly claimed in filings before the Court of Appeals that it has been hard at work on gathering all of this information in the DTA cases ever since last spring, when the Supreme Court’s initial cert denial in the habeas case resulted in 170 DTA actions being filed. If Mukasey now believes this is a burden, someone in DOJ is lying.

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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.  Thankfully — if this brutal Newsweek account of Mukasey’s reception on Capital Hill is accurate —  it doesn’t look like that will happen this time around. However, even the threat of new legislation coming over the horizon has a tendency to make the courts hesitant to act. Congress should be a part of the solution this time by staying out of the way and letting the courts do their job.

Full post as published by ACS Blog on August 04, 2008 (boomark / email).