Guantanamo and Military Courts

I feel much better about the military tribunals, now that AG Mukasey has defended them:

Attorney General Michael Mukasey, defending military commissions to prosecute suspected terrorists, told federal judges yesterday that the upcoming trials will be “in the best traditions of the American legal system.”

…

“The military commission trials . . . will look and feel a lot like federal trials, albeit with some important differences,” Mukasey said.

Differences?

In civilian courts, hearsay evidence and confessions obtained through coercion are not admissible. Such evidence is allowed in the military commissions.

Yeah, allowing evidence obtained through torture is a bit of a difference.

And the judges will not be interfered with. If they rule against the government:

Deputy Defense Secretary Gordon England has approved the enemy combatant designation for the 14 detainees, after reviewing recommendations from their Combatant Status Review Tribunals, which took place over the last six months. Pentagon spokesman Bryan Whitman would not say yesterday when England made the decisions, but indicated that they were done over a period of time.

England’s ruling allows the 14 suspects to be held indefinitely at the detention center and put on trial for war crimes.

But the trial system remains under challenge and it has been called into question by recent court rulings, including a decision by one military judge to throw out a case against a Guantanamo detainee over the wording of the enemy combatant designation.

That judge, Army Colonel Peter Brownback, said he had no choice but to throw out the case against Omar Khadr because he had been classified as an enemy combatant by a military panel years earlier — and not as an alien unlawful enemy combatant.

nothing will happen. Oh wait:

The decision to replace the judge in the Guantanamo trial of a young Canadian prisoner was “completely unrelated” to any ruling or actions by that judge, the tribunals’ chief judge said on Monday in a rare public statement.

Judge Army Col. Peter Brownback was replaced because his duty orders expire later this month, said Marine Col. Ralph Kohlmann, the chief judge in the U.S. war crimes court at the Guantanamo naval base.

…

The Pentagon issued a statement on Friday saying Brownback and the Army had mutually decided he would return to retirement when his active-duty orders expire later this month.

But Kohlmann said in statement on Monday that Brownback had been willing to stay on as long as needed. He said the Army declined in February to extend Brownback’s service “based on a number of manpower management considerations” unrelated to the trials.

So Brownback was willing to stay for the trial, but the Army decided against it. But it had nothing to do with his earlier decision. Really.

Mukasey Supports Yoo

In an address to BC law graduates, Attorney General Mukasey basically said that no one should be punished for torture:

One memo defined torture, as recognized by U.S. law, as covering “only extreme acts” causing pain similar in intensity to that caused by organ failure or accompanying death.

An internal Justice Department investigation is now considering whether such advice was improper.

At the Friday ceremony, Mukasey lambasted critics seeking to bring lawsuits or charges against the lawyers. “The rhetoric of these discussions is hostile and unforgiving,” Mukasey said in his prepared remarks.

You would think they were being tortured. No wait, that would be ok with him. So, let’s summarize: Mukasey doesn’t think any person should be prosecuted for following these memos even if it turns out something illegal was done and now he has basically said that nothing should be done to the people who wrote the memos. This means he doesn’t think anything should happen to anyone even if something illegal was done. What a great way of thinking for the top law enforcement officer in the country.

Mukasey Says No To Grand Jury, On To Civil Lawsuit

It seems that Mukasey is holding to his belief that a person can do anything if someone in the Justice Department tells them it’s ok:

In his letter, received by the House early Friday evening, Mukasey pointed out that not only was Miers directed not to testify, she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned.

“The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” Mukasey wrote, quoting Justice policy.

Not suprisingly, the reasoning behind his decision comes from a Justice Department legal opinion in 1984 under Reagan. In response, Speaker Pelosi has directed the Judiciary committee to file a civil enforcement action (via TPM). The legal opinion of 1984 has not been tested in courts, it looks like it might be now.

Mukasey, Still Stupid

Mukasey keeps on making stupid statements. His latest:

Testifying before the House Judiciary Committee, Mukasey said it would be inappropriate to investigate the interrogators because the Justice Department had issued secret memos concluding that President Bush’s wartime powers made waterboarding and warrantless surveillance legally permissible.

“Essentially, it would tell people, you rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when and if the tenure of the person who wrote the opinion changes or, indeed, the political winds change,” Mukasey said. “And that’s not something that I think would be appropriate, and it’s not something I will do.”

Rep. Delahunt states the obvious:

Mukasey was essentially giving “immunity from any criminal culpability” to anyone who breaks a law, so long as the Office of Legal Counsel secretly signs off on the conduct – even if the legal advice was “inaccurate.”

Imagine if an AG said that something obviously illegal was ok (like, I don’t know, waterboarding) and someone did that, then the Justice Department would not go after them. He gave no limitations, so this would be true for murder even. As I said, stupid.

This person doesn’t quite get it:

“People who rely on good faith on an Office of Legal Counsel opinion should not be prosecuted even if it turns out that the opinion was wrong,” said Dawn Johnsen, an Indiana University law professor who ran the office during the Clinton administration. “To prosecute a government employee who relied upon that opinion is not the way to fix the problem.”

The way to fix that problem, she said, was through more aggressive congressional oversight – including by lawmakers insisting they be shown any memos that conclude that a president’s constitutional powers trump a statute.

I like the fact that Charlie Savage (who wrote the article) follows this up with:

Yesterday, the chairman of the House Judiciary Committee, Representative John Conyers, Democrat of Michigan, asked to see the waterboarding memos, saying he and his colleagues had top-secret security clearances. Mukasey refused, saying the memos discussed a classified program.

Yeah, oversight, that would work. Note that Mukasey in these two bits has said that the Justice Department will not go after anybody for doing something the Justice Department says is ok and nobody can see the memos that said they were ok (in other words, the Justice Department unilaterally gets to decide if somethin is legal with no oversight).

In another place, Mukasey says that waterboarding might now be illegal but with a very large caveat:

A C.I.A. spokesman, Paul Gimigliano, later said that General Hayden was in agreement with remarks earlier in the week by Mike McConnell, the director of national intelligence, and Tony Fratto, a White House spokesman, that any decision to use waterboarding in the future would require approval by the attorney general and the president.

Yeah, I’m sure approval would be very hard to get.

Also, I love this bit (from here):

NADLER: Mr. Attorney General, I was interested to hear you say a moment ago that if the president ordered someone to do something against the clear intent of Congress, that’s outside the law.

The FISA act said a person is guilty of an offense if he intentionally, one, engages in electronic surveillance under the color of law, except as authorized by statute.

Now, the president admitted that he did that. Every 45 days he signed an authorization to direct the surveillance of people in the United States without a warrant as required by the FISA act.

Now, I had previously asked your predecessor, Attorney General Gonzales, given this apparent prima facie case that the president and people under him, including the prior attorney general, engaged in felonious conduct by doing so, that he appoint a special counsel to investigate the warrantless surveillance of Americans.

And I recently reiterated that request to you.

Now in your testimony before the Senate last week, you responded to Senator Leahy’s questions on whether the president violated the law by authorizing wireless surveillance by stating that you, quote, “don’t know whether the president acted in violation of statutes,” unquote, including FISA.

I believe we need to know the answer: Did the president, with, as has been reported, the advice of the Justice Department, break the law?

I believe the answer is clear that he did.

Given the extraordinary circumstances involved, allegations of criminal conduct by the president and other high-ranking officials and the possibility of conflict at the Justice Department, will you now agree to appoint outside special counsel so that we finally will get an answer to this question?

MUKASEY: The direct answer to your question is no, I will not.

NADLER: Because?

MUKASEY: Beg pardon?

NADLER: Because?

MUKASEY: Because — because there is one detail that was omitted, and it may very well have been my fault in saying I didn’t know when I’d forgotten or overlooked.

There was in place an order — I’m sorry, an opinion of the Justice Department describing the legal basis for the program to which you refer. That included the authorization of the use of military force, as a congressional statute on which it was relied that that behavior was legal.

I understand that there are views on both sides of that — strong ones.

NADLER: Well, there are views — let’s put it this way: The Supreme Court in the Hamdan case, in a case just about directly on point, ruled that — for reasons I’m not going to get into now, we don’t have time in five minutes — that the use of the two excuses by the Justice Department, namely the president’s inherent powers under Article II and the authorization for the use of military force as justification, was not, in fact, justification. The president is still bound by the law. The law was not repealed by implication by the AUMF and that that’s not sufficient.

Wow, he says there are views on both sides of that and doesn’t mention that one view on the other side of the Department of Justice was the Supreme Court. Hmm.