Mukasey Tries End Around Supreme Court

Bush’s Justice Department, a misnomer if ever there was one, won’t give up on its pathetic game to deny detainees their right to habeas corpus.

After losing at least three times in the Supreme Court, the Justice Department is still trying to find a way around what the court has repeatedly demanded: that the detainee be able to adequately challenge his detention in a prompt manner.

Attorney General Michael Mukasey ventured out to the American Enterprise Institute on Monday to urge Congress to pass laws that would circumvent the ruling of the Supreme Court.

Mukasey said the government shouldn’t have to charge detainees with any crime, and that they can be held until the end of the war on terror, which he himself acknowledged is indefinite. “No one can predict when this one will end or even how we’ll know it’s over,” he said. He urged Congress to pass another law reiterating that the war against Al Qaeda and the Taliban continues and that the U.S. may detain enemy combatants “for the duration of the conflict.”

But this June, in Boumediene v. Bush, the Supreme Court tartly noted that some of the detainees had been held in Guantanamo for six years without the privilege of habeas corpus. “The detainees in these cases are entitled to a prompt habeas corpus hearing,” the Court ruled.

Mukasey didn’t say how long detainees should go without getting their habeas corpus hearing. But he saw no problem with holding detainees for six years without even charging them with a crime. “The fact that we have not charged all of those remaining at Guantanamo with crimes should not be regarded as a fair criticism of our detention policies,” he said. “Rather, it reflects the fundamental reality that these individuals were captured in an armed conflict, not in a police raid.”

But the whole point of the Boumediene ruling was that it didn’t matter where detainees were caught; they still have rights.

Mukasey also asserted that the ability of detainees to challenge their detention should be circumscribed, and that the political branches should do the circumscribing themselves, not the judiciary.

“These issues should not be left to the courts alone to resolve,” he said. “Congress and the Executive Branch . . . are in the best position” to resolve them.

But in its Boumediene decision, the court rejected the idea that Congress and the President are better situated: “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain,” it said. And it reiterated the fundamental position of the Court, since Marbury v. Madison, insisting that we cannot have “a regime in which Congress and the President, and not this Court, ‘say what the law is.’ ”

Bush’s Justice Department has consistently tried to say what the law is, no matter what the Supreme Court has decided.

For instance, Mukasey wants Congress to strip detainees of the right to challenge their detention under the Detainee Treatment Act, although the Court left such challenges open in Boumediene. And Mukasey said “challenges to conditions of confinement” should also be banned and are “not required by the Constitution”—a conclusion he can reach only by ignoring the Eighth Amendment.

As a former judge, Mukasey is not showing due deference to the judicial branch, or to the Constitution.

Instead, he’s doing the king’s bidding.