We are, sadly, accustomed to hearing President George W. Bush’s lawyers justify this administration’s ceaseless efforts to undermine the Constitution and the rule of law: intrusions on privacy, warrantless wiretapping, indefinite detention, torture.
It was bad enough when Attorney General Alberto Gonzales helped write and defend these policies; he always made clear his loyalties were to Bush, not the United States. But it was appalling to hear his successor, Michael Mukasey – who was supposed to be better – demanding that Congress further expand Bush’s power to detain foreigners without charges or reliable evidence, and further evade judicial oversight.
In a speech last Monday, Mukasey renewed the administration’s criticism of Supreme Court rulings on detainees. The court has ruled in several cases that Bush and then Congress, at his insistence, illegally denied the Guantánamo prisoners the basic human right to challenge their detention in court.
He demanded that Congress swiftly pass measures that would sharply reduce the possibility that any Guantánamo prisoner could have a fair hearing.
Mukasey offered six principles that should drive such legislation – including keeping secrets secret, limiting prisoners’ access to evidence, and not inconveniencing the military. America’s chief law enforcement officer never mentioned the rule of law or justice.
Mukasey said Congress should allow the government to introduce secret evidence at habeas corpus hearings and limit prisoners’ rights to introduce testimony or call witnesses. He derided the notion that detainees should get “a full dress trial.” He even expressed doubt that prisoners needed to attend their hearings.
All of this, as usual, was couched in apocalyptic terms. “We simply cannot afford to reveal to terrorists all that we know about them,” he said, as if anyone had ever suggested that. There are ample ways to protect secrets during a trial.
The fear-mongering did not stop there. Referring to the possibility that some of the few hundred men at Guantánamo might be found innocent and then seek asylum in the United States, Mukasey said “all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions who have absolutely no right to be here.” He said there was a risk that a court could “release into our communities people who could pose a significant danger.”
That is not true.
Many prisoners in Guantánamo have been proved to be no threat, and were not detained under anything like battlefield conditions. More than 20 are now languishing there after being cleared for release, including Chinese Muslims known as Uighurs. They cannot be returned to their home countries for fear of torture or worse, but the administration refuses to allow them into the United States. That has made it impossible to get European countries to accept them.
No one is arguing that terrorists should be set free. What the administration fears is that hearings for any prisoner will reveal how much abuse has been meted out by American interrogators and how thin and tainted the evidence is against most of the Guantánamo prisoners.
It would be catastrophically irresponsible for Congress to rewrite the rules of justice according to Mukasey’s cynical template. There has been too much injustice already.