With Hamdan Trial Underway, Mukasey Pushes Limited Detainee Rights

[WSJ_law_blog]

Yesterday, as the war crimes trial of Salim Ahmed Hamdan, Osama bin Laden?s former driver, got underway in Gitmo, Fearless Leader Mukasey (pictured) was beating the Bush administration’s drum at the American Enterprise Institute, arguing, inter alia, for “practical” limits on a detainee’s rights to challenge his or her detention. Here are reports from the WSJ , the NYT and the AP.



Attorney General Michael Mukasey speaks at the American Enterprise Institute in Washington, Monday, July 21, 2008. (AP Photo/Gerald Herbert)


Mukasey, apparently dissatisfied with the Supreme Court’s decision last month in U.S. v. Boumediene, in which a 5-4 Court held that foreign nationals held at Gitmo have a right to pursue habeas challenges to their detention, suggested that Congress use legislation to explicitly state that the U.S. is in “armed conflict with al Qaeda, the Taliban and associated organizations” and give the government the power to detain combatants “for the duration of the conflict.”

Mukasey, referring to a post-9/11 Congressional resolution that authorized the use of military force against those who carried out the attacks, told the audience at AEI: “I’m asking for a reaffirmation of something that was enacted in legislation after Sept. 11, 2001. I am suggesting that it would do all of us good to have that principle reaffirmed, not that the principle itself is in doubt.”

As always, when seeking commentary on politically-charged events, we make a bee-line for the WSJ editorial pages. What did the editorial board think of Mukasey’s act? “We had not known previously that among Attorney General Michael Mukasey’s skills was the satirical bite of Jonathan Swift,” the editorial begins. “Only a Swiftian wit could have come up with Mr. Mukasey’s proposal . . .that the Solons of Congress solve the legal riddles of the Supreme Court’s recent Boumediene decision on the rights of Guantanamo detainees.”

Putting satire aside, the editorial board says Mukasey “was right in stepping forward to say that someone has to take responsibility for the consequences” of Boumediene. “Once into the federal courts,” the piece explains, “the [habeas] process most likely will bog down into a Babel of conflicting procedural and legal rulings.”