Justice Stuff
by digby
I heard Senator Chris Dodd on NPR this week-end talking about his new book about his father, the Nuremberg prosecutor. He was very eloquent on the subject of the rule of law and extremely passionate about restoring habeas corpus. (I do like the guy, I must say.)
Today, he and Senator Pat Leahy have launched Restore Habeas and are asking citizens to become co-sponsors of the Restore Habeas Restoration Act:
This week, we have a critical opportunity to restore habeas corpus.
The Habeas Corpus Restoration Act gives us a chance to reverse one of the Bush Administration’s many assaults on our civil liberties.
We all want to make America safe from terrorism, but becoming a nation that sanctions the unlawful detention of its own residents — detaining and jailing them without the chance to appear before a judge — does not make us safe. Instead, it violates a value that we have held dear for centuries — safeguarding our individual freedom before arbitrary state action.
You can sign up to be a co-sponsor here.
This is so important. I’m not sure this country can hope to regain its footing or protect ourselves properly in this new age unless we erase that horrible blemish of the Military Commissions Act.
Today Bush announced his new pick for Attorney General, a man who is not as bad as Alberto Gonzales or John Yoo, which is good. He’s hardly anyone in which I would put any faith to protect the constitution during this “War On Terror,” however.
Trial of Jose Padilla: Judge Mukasey supported granting terror suspects who are U.S. citizens select constitutional protections. While he ruled that the government had the power to detain Jose Padilla as an enemy combatant, he stood up to pressure from the Bush Administration and demanded that Mr. Padilla have access to counsel. He also ruled that Mr. Padilla was entitled to see the government’s evidence against him.
Judge Mukasey ruled that the government has the power to detain enemy combatants, regardless of their citizenship or place of capture. Judge Mukasey decided that the President is authorized by his powers as Commander in Chief[1] and by the Joint Resolution for the Authorization for Use of Military Force.[2] His powers cannot be questioned so long as U.S. troops are in Afghanistan and Pakistan seeking al Qaeda fighters: “At some point in the future, when operations against al Qaeda fighters end, or the operational capacity of al Qaeda is effectively destroyed, there may be occasion to debate the legality of continuing to hold prisoners based on their connection to al Qaeda…”[3]
But, Judge Mukasey also ruled that Padilla must be allowed access to counsel in order for the courts to fairly consider the government’s designation of Padilla as an enemy combatant. “…Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel.”[4]
And Judge Mukasey stood up to pressure from the Bush Administration to change his ruling. “When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney’s office insisted on sending Olson’s deputy, Paul Clement, on what Justice Department lawyers called ‘a suicide mission’: to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Judge Mukasey derided the government’s ‘pinched legalism’ and added acidly that his order was ‘not a suggestion or request.’”[5]
That last seems to me to express more of a (proper) sense of judicial prerogatives than any great devotion to human rights. However, he does deserve credit for at least adhering to the “spirit” of the constitution in demanding that Padilla have access to a lawyer and be allowed to address the charges against him, even if he held that the administration can call any citizen an enemy combatant and treat him under a separate set of rules at his discretion. That we consider this to be a mark of a great and honest conservative jurist just tells you how far down the road to tyranny this country has gone. Still, it’s better than some, so you have to give him his due.
The rest of his recent record isn’t that ambiguous:
Judge Mukasey has defended the use of the material witness statute to detain terrorist suspects without charges.
In Padilla Judge Mukasey signed the material witness warrant authorizing Padilla’s detention.
In Re Material Witness Warrant Judge Mukasey broke with the precedent established in Awadallah, arguing that the material witness statute may be used to detain terrorist suspects for grand jury proceedings and that it does not violate the Fourth Amendment, stating: “[t]he duty to disclose knowledge of crime rests upon all citizens” and “is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”[7] He also based his argument on the fact that it is difficult to determine the need for testimonial evidence prior to trial, calling such suppositions “at best an imponderable undertaking.”[8]
Following the attacks of 9/11, Judge Mukasey closed all material witness court hearings and court documents associated with a grand jury investigation to the press and the public.[9]
In a forum held by the NYC bar association, Judge Mukasey defended charges that judges have failed to resist prosecutors’ broad use of the material witness statute, arguing that witnesses are quickly brought before judges to determine the fairness of their detention[10]
Judge Mukasey has expressed concern over using U.S. federal courts to hear cases involving terror suspects.
Judge Mukasey argued that Padilla’s case should not have been heard in a U.S. federal court because terror trials require too much time and too many resources and risk disclosure of U.S. intelligence methods to our enemies.[11]
Judge Mukasey argued that after the government was required to turn over a list of 200 unindicted co-conspirators in Rahman (1995 trial of Sheik Omar Abdel Rahman and 9 co-defendants, charged with participating in the 1993 World Trade Center bombing, plotting to destroy the UN, FBI offices and other NYC landmarks, and proposing the assassination of the Egyptian president), Osama bin Laden had the list within 10 days, thus notifying bin Laden that the U.S was aware of his involvement.[12]
Judge Mukasey has expressed views favoring administrative detention – the imprisonment of detainees without trial.In his Wall Street Journal op-ed, Judge Mukasey urges lawmakers to consider the creation of an alternative national security law enforcement system, and laments the lack of a law authorizing pre-trial detention in the United States. In the piece, Judge Mukasey speculates that the government’s designation of Mr. Padilla as an enemy combatant might have been due to his being, “more valuable as a potential intelligence source than as a defendant.”[13]
He is far from acceptable to me. But it looks like he’s going to be confirmed, probably in a series of hearings in which certain preening Democrats will fall all over themselves extolling his virtues. (Thank God this administration is almost over.) And he could be worse. After all, they could have nominated Ted Olsen or Laurence Silberman.
Pat Leahy says that he’s going to hold up the confirmation hearings until the administration releases all the documents its been refusing to release. In response, Bush has appointed a terrible wingnut as acting AG, probably to try to force Leahy’s hand. We’ll see how that works out. It would be very satisfying if old Pat picked a big fight on this and insisted.
Meanwhile, both he and Dodd deserve props for pushing the repeal of the MCA. Passing that piece of offal was the lowest congressional moment since the filibusters of the civil rights legislation back in the day and it would be a huge relief to civil libertarians and decent people everywhere if the Democrats could dispatch it into the history’s dust bin quickly. They owe the country that much.
.