Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

One small step for immigrants . . .

While the economic crisis may have pushed President Obama's plans for comprehensive immigration reform into next year and beyond, Democrats in the legislature are already offering a preview of good news for immigrants. Moreover, given the vast discretion awarded to the executive in enforcing immigration law, we may see a sea change in the treatment of immigrants before any immigration reform bill hits the floor of the legislature.
This Wednesday, Senator Leahy held a Judiciary Committee meeting to discuss the Uniting American Families Act of 2009, a bill that would extend those immigration benefits currently offered to married heterosexual couples to "permanent partners." The latter are defined as individuals over 18 years of age in a monogamous, financially interdependent relationship intended to be a lifelong commitment, but unable to marry. This amendment would thus allow an LGBT U.S. citizen in permanent partnership with a non-citizen to sponsor her partner for a green card and an LGBT asylee or refugee to designate his partner as a derivative recipient of his asylum or refugee status, among other benefits. The impact on LGBT couples would be tremendous, but of course, as the NY Times describes, political opponents have already reacted strongly. This will not be one of those "areas of agreement" that Obama seeks to identify; brace yourselves for a long, hard fight -- but at least it's being fought.
On the same day, Attorney General Holder confirmed that non-citizens are entitled to effective assistance of counsel in immigration hearings. This wise step vacated former AG Mukasey's decision in Matter of Compean (about which IntLawGrrl Dina Francesca Haynes posted here), less than two weeks before Obama took office, to overturn long-standing precedent establishing a framework for bringing ineffective assistance of counsel claims in immigration court. Bringing great cheer to the hearts of immigrants and proceduralists alike, Holder notes that the process used by Mukasey to overturn the ineffective assistance of counsel framework was insufficient, and seeks instead to create

one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.

(In the meantime, the pre-Compean framework remains in place.) While this standard may seem a bare minimum of procedural fairness, it represents a great step towards transparency and fairness in an area of law heretofore characterized by neither. Here's hoping it's the first of many such steps.

Deportees not entitled to effective counsel?

Earlier this month, U.S. Attorney General Michael B. Mukasey certified yet another decision to himself, this one effectively eliminating the right to effective assistance of counsel for people in removal proceedings in immigration court. The decision, Matter of Compean, means that all persons in removal proceedings, including asylum seekers, have no statutory, constitutional or other right to representation or effective representation before being removed from the country.
Immigration professors and advocates are outraged at this latest in a string of decisions by the Attorney General to certify cases to himself -- cases governing issues left dormant or neglected over the course of the last eight years of this administration -- in a rush to make law before the inauguration of the new President this coming Tuesday. Last year, the AG certified to himself Matter of A-T-, dealing with female genital mutilation, in which this author wrote an amicus brief on behalf of 125 medical entities and institutions, and about which IntLawGrrl Jaya Ramji-Nogales posted here.
Concerned immigration advocates call this latest decision another attempt both to destroy the already minimal due process rights of noncitizens in the United States and to further limit the possibility of federal judicial oversight. Challenges to Matter of Compean are already being drafted and filed, but for the time being, this case is law -- and those about to be deported can no longer claim that their attorneys were ineffective in assisting them in court.

Rushing to Acquit

(My thanks to IntLawGrrls for inviting me to publish this guest post.)

In the past months, a steadily increasing flow of information strongly suggests that Bush-Cheney Administration officials may have committed or approved of the commission of War Crimes and other violations of international and domestic law in pursuit of its “War on Terror.” In reaction to the building mass of evidence – testimonial, documentary, videotapes, and photographs – of torture and cruel treatment of detainees from Guantánamo to Bagram to Iraq, a number of commentators and pundits have tried to “spin” the evidence away from accountability.
According to these media partisans, no one should be prosecuted, the President should issue pardons to all, and the best option is to have some kind of truth commission later on when it’s all over. Despite a scathing report from the Justice Department’s Office of the Inspector General in May 2008, reporting the F.B.I.’s observation of a catalogue of abuses at Guantánamo, Attorney General Michael Mukasey has refused to take any action against Justice Department or other officials who may have been involved in sanctioning the use of “enhanced interrogation” methods, including torture.
These “enhanced interrogation” methods, derived from Chinese and Soviet techniques developed to torture U.S. soldiers, have been called “necessary” by those who promulgated their use despite pervasive evidence that such techniques do nothing more than produce false confessions.
Ignoring the legal requirement for investigation and accountability for the use of cruel and inhuman treatment, including the use of torture, is a wholesale abandonment of this country’s commitment to the Rule of Law. I firmly object to a premature pre-emption of possible prosecutions against people who have committed war crimes or other violations of U.S. and international law. It is imperative that the United States, long a supporter of human rights, the Geneva Conventions, and the Convention Against Torture, honor its commitment to these laws. To do otherwise is to abandon the long-standing principles of this nation and to endanger the standing of the United States as an advocate for human rights. To do nothing diminishes the value of the Rule of Law.
I do not deny the horrific violence committed against the United States on September 11, 2001, or the trauma it has caused. I do deny that the attacks of 9/11 absolve the United States of its historic commitment to the Rule of Law. U.S. commitment to laws regulating war arises from deep within American history, something that the architects of the “war on terror” seem to have ignored. The United States first stood for humane treatment of captives during the Revolutionary War, when George Washington forbade his troops from mistreating the British, even if the British tortured Americans. During the Civil War, Lincoln commissioned the Lieber Code establishing a law of war. After World War II, the U.S. was a primary advocate for the Geneva Conventions. And it has honored Geneva and held the Conventions applicable through every war until the “war on terror.” Moreover, the United States is a state party to the Convention Against Torture, and the Detainee Treatment Act of 2005, which specifically forbids the military, although not the CIA, from engaging in torture or cruel, inhumane, and degrading treatment of “detainees.”
The United States not only helped promulgate the Geneva Conventions, it is a state party and has enacted legislation binding the country to the Conventions. Geneva prohibits the mistreatment of any captive in a war, regardless of status. The Bush Administration lawyers decided, on the basis of one highly criticized Supreme Court case, Ex parte Quirin (1942), to argue that anyone designated an “enemy combatant” had no rights under Geneva or any other law, including the criminal law of the United States. The Geneva Conventions, however, contain no such description or definition. And, since Quirin, the United States has honored Geneva and the Supreme Court has repeatedly held that simply calling someone an “enemy combatant” does not remove the person from the protection of the laws, including Geneva and the Constitution of the United States.
Impunity from prosecutions for war and other crimes is for dictatorships, not democracies. Thus, I steadfastly believe that “impunity” from prosecution for crimes committed by government agents or their superiors – either through pardons or refusals to investigate and prosecute – damages the commitment to the Rule of Law for which the United States has long stood, and for which International Law has stood, for many years. The Nuremberg Principles (1950) made clear that obeying orders from a “higher authority” did not excuse war crimes and crimes against humanity. As a chief prosecutor at the International Military Tribunal at Nuremberg, and as a country that has long stood for the principle of being a government of laws, not men, the United States cannot and should not abandon the Rule of Law for convenience, its own political comfort, or deniability of crimes committed in the name, if without the approval, of the American people. Ruling out prosecution in advance of the evidence is neither a legal nor a moral option.

(Library of Congress credit for poster above right, captioned "Geneva Conventions: Military personnel and combatants who are captured or who surrender shall not be killed and shall be treated humanely"; credit for © Raymond D'Addario photo of U.S. Supreme Court Justice Robert H. Jackson, serving as Chief U.S. Prosecutor at 1st Nuremberg trial. Cross-posted at CommonDreams.org)

On this day

On April 6, ...

... 2001, an Algerian who'd been living in Canada, Ahmed Ressam, was convicted twice in 1 day, in France and in the United States. The former conviction, delivered in absentia, related to charges of belonging to a "support network" of terrorists. The latter, returned by a jury in Los Angeles, California, related to charges of trying to bring explosives into the United States shortly before the country was set to celebrate New Year's 2000, marked (albeit, perhaps, inaccurately) as the dawn of a new millennium. On March 25, 2008, the U.S. Supreme Court heard oral argument in an appeal of the latter conviction and sentence; newly installed Attorney General Michael B. Mukasey argued on behalf of the United States. The case of United States v. Ressam is now under advisement.

... 1793 (215 years ago today), French revolutionaries established the Committee of Public Safety, an event that helped to touch off the bloody, yearlong period known as the Reign of Terror and symbolized by the weapon of execution, the guillotine (right).

On investigation of post-9/11 waterboarding

With this guest post I'd like to weigh in with a few thoughts on "A Dissenting View on Prosecuting the Waterboarders." In that post over at the Balkinization blog, Georgetown's Marty Lederman wrote that although he was "horrified by what DOJ approved and what the CIA has done" – that is, the subjection of so-called high-value detainees to simulated suffocation in the course of interrogation – he does not "find it so surprising, or objectionable, that DOJ would not think of prosecuting the CIA operatives and contractors, even though" Marty's been a leading critic of "the DOJ legal advice underlying the CIA's interrogation practices."
I too have been a critic of that advice, for example, in the article available here and as a drafter and signatory to the Principles to Guide the Office of Legal Counsel endorsed in that article. As does Marty's, my criticism stems from my own experience as an attorney at the Office of Legal Counsel (OLC) of the Department of Justice (DOJ). From 1993-96 I served as a deputy there, and from 1997-98 I was OLC's Acting Assistant Attorney General, as Diane Marie Amann's described in her introductory post above.
Here's why I support Marty's position:
First, to be clear, of course current Attorney General Michael Mukasey – and more likely to the point, the next AG -- should investigate what happened. OLC misinterpreted the law in a way that led to torture. No question that demands investigation!
The question is how should that investigation be framed; and today, how should members of Congress and concerned observers describe the investigation they want Mukasey to undertake.
I believe that focusing on the criminal culpability of the career guy who engaged in waterboarding/torture in reliance on the horrific legal advice is the wrong way to go. It diverts attention from where culpability truly lies. Furthermore, at this point it seems very unlikely the facts could support such a prosecution, so it would be wrong for the AG to suggest otherwise. Again, though, there absolutely should be an investigation (so Mukasey is wrong to the extent he says no to that). It is conceivable that such an investigation would uncover facts that could support a prosecution, but that is not true of what we know today. If the investigation uncovers unexpected evidence that would support a prosecution, that of course should be pursued, but it seems irresponsibly premature at this point to say that is the point of the investigation.
For decades prior to this administration, OLC legal opinions were treated by the executive branch as authoritative unless overruled by the AG or the President. During the Clinton administration it's how we understood the office (and how we consistently described the status of our legal opinions). It is how the former heads and deputies from OLC – from the Carter, Reagan and first Bush administrations – and many others, from within and outside the Executive Branch, described the office to me when, as a member of the transition team, I interviewed them just prior to Bill Clinton's taking office.
Based on all reports I've seen, the current administration continued to assert that status for OLC opinions, specifically in the face of internal objections to OLC advice on interrogation (though we now can say that wasn't appropriate given the changed role/interpretive stance of the office). Far from overruling OLC's advice, those in the Bush White House endorsed OLC's legal conclusions. Thus it is very hard, I think, to say, given all of this, that early in the Bush administration, in the wake of 9/11, when the waterboarding actually occurred, that it was unreasonable for CIA career employees to rely on what OLC and the White House instructed that the law permitted. Again, it is conceivable an investigation might turn up unexpected facts that could support a prosecution. In addition, today, and in recent years, would be a very different question, given the subsequent legislation and also all the attention to the fact OLC has not been fulfilling its traditional role, at least with regard to counterrorism issues.
I don't agree with those who suggest that it's only for the jury, and not for the prosecutor, to decide whether the reliance by those careerists was reasonable. Surely the AG shouldn't proceed with a prosecution where OLC, with the support of the White House, directed a government employee to do something and the AG continues to believe that reliance was reasonable.
Going forward, we can and should think about whether the role of OLC should be different, given our experience with this administration destroying that office. In fact, not only is that inquiry possible, it is inevitable, because the role of OLC already has been transformed – so if we want to return to the traditional role, that will require change. The 10 "Principles to Guide OLC" was one attempt by some of us to address that question, in the wake of the disclosure in 2004 of the Torture Opinion. Admittedly we took a relatively conservative approach, no doubt in part because we all were OLC alums who believed things worked quite well when we were there.
The point now, of course, is to figure out whether we can make institutional changes to increase the likelihood things work properly under the worst of conditions (though sometimes you can't – or shouldn't – design institutions tailored to the most abusive of administrations; you may need to rely at least in part on other checks). We should consider a range of possibilities. But I would caution against assuming that a radical change in the traditional, pre-Bush role of OLC is what we need. Perhaps it is, but I'm not yet sure there is a better approach to providing the President with the best legal advice than working to institutionalize standards and processes that build on and strengthen the traditional model. I would love to hear reactions and alternative suggestions.

Torture prosecution as point of comparison

Posted a while back on legal developments in the United States' case against Charles McArthur Emmanuel, also known as Charles "Chuckie" Taylor, Jr., in recognition that the defendant's father is former Liberian President Charles Taylor, himself facing "restart" on January 7, 2008, of his war crimes/crimes against humanity trial before the Special Court for Sierra Leone. (See here for developments last week in the trial of Taylor père.) Notable was the rejection by U.S. District Judge Cecilia M. Altonaga of defense objections that 18 U.S.C. § 2340A, the statute that implements U.S. ratification of the Convention Against Torture, was unconstitutionally vague.
While awaiting Emmanuel's trial in Miami, also set to begin early next year, check out this commentary comparing the anti-vagueness arguments that U.S. Department of Justice attorneys made in Emmanuel with the pro-vagueness arguments their superiors've made in the course of the post-9/11 campaign against terrorism (arguments recently echoed, in defense of the testimony of newly inaugurated U.S. Attorney General Michael B. Mukasey, by former Mary Jo White (above left, a Manhattan-based former U.S. Attorney). Author of the critique is Elizabeth de la Vega (right), whose 20-plus-year career as a federal prosecutor included membership on the Organized Crime Strike Force and heading the San Jose branch of the Office of the U.S. Attorney.

Waterboarding roundup

No need to repeat prior thoughts (here and here) on the nomination of Michael B. Mukasey to be Attorney General; those thoughts still hold. But as the Mukasey nomination heads for the full Senate floor -- having cleared committee thanks to the tipping factor of "aye" votes cast by Senators Dianne Feinstein (D-Cal.) and Charles Schumer (D-N.Y.) -- it seems a good time to sample others' comments on the nomination and on waterboarding, the interrogation tactic that the nominee's declined to call illegal.
Check out:
"Self-Inflicted Wounds," an op-ed by former Bush and Clinton Administration officials Alberto Mora and John Shattuck
"Poll results: Waterboarding is torture"
"French Journalist Henri Alleg Describes His Torture Being Waterboarded by French Forces During Algerian War" (video of that televised interview here)
Post scriptum: Realize that the title of this post may make one wince. Yet it's apt, and that in itself is worth thinking about.

Not just water under the bridge

Concerns about the nomination of Michael B. Mukasey were posted here the very same day that President George W. Bush tappped him to become the next Attorney General of the United States. At that time it seemed the concerns would fall on deaf ears; reporters predicted little opposition to a man who clearly possesses the credentials for the job. But that's not what happened.
After sailing through the 1st day of Senate Judiciary Committee hearings, in part because he disavowed the so-called "torture memo" of August 1, 2002 (as the Justice Department did years ago; see my article Abu Ghraib), on Day 2 Mukasey foundered, refusing to give a straight answer to a straightforward question. At issue was "waterboarding" -- pretending to drown an interrogee, a tactic that, as we've posted, the United States is said to have deployed against Khalid Sheikh Mohammed and certain other post-9/11 detainees. (The image at left, which reflects concerns about the recent proliferation of depictions of violence, is the one we've used consistently to "illustrate" this topic.)
The question: Is waterboarding torture?
He "remained mum" on this point, and his answer has not changed in the 2 weeks since the hearing. Yesterday, according to the New York Times, Mukasey "said that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me; and promised to review the legality of such methods if confirmed." But as to "whether waterboarding, which simulates drowning, was illegal torture," he "could not say."
That position prompted Senators Christopher Dodd (D-Conn.) and Barack Obama (D-Ill.) to oppose Mukasey's nomination. Other presidential candidates then followed suit, and with good reason.
There ought to be no doubt that this practice is illegal. It's an assault and battery that has been known at times to result in death. It's cruel, inhuman, and degrading treatment. The United States prosecuted enemies as war criminals for it in prior conflicts. (See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia Journal of Transnational Law 468 (2007)). And when it's done by state actors in a (misguided) effort to get information, waterboarding fits this definition:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

That, according Article 1 of the international convention that the United States ratified more than a decade ago, is torture. Anyone who can't find the words to say so shouldn't be seeking the job of the United States' top law enforcement officer.

Take care not to court insecurity

"George Bush Goes for Consensus in Naming Michael Mukasey for Justice," reads the minutes-old headline at Le Monde. It spins with the Associate Press story that surmises, "Mukasey appears unlikely to face a bruising confirmation battle in the Democratic-controlled Senate."
No quibbling about the credentials of Mukasey (left), who presided over high-profile terrorism trials while a Chief Judge at the U.S. District Court in Manhattan, to serve as Attorney General of the United States. Still, there's good reason for Senators to take a hard look at the nomination.
Fresh in mind is the U.S. citizen whom the U.S. executive kept in "enemy combatant" detention for years before permitting him to stand trial in federal court in Miami. Prosecutors set out the case against José Padilla in an open and public proceeding, without resort to classified evidence -- and jurors promptly returned the verdict of guilty that likely will permit his incarceration for life. Putting to one side the difficulties presented to the defense by the taint of prior detention, many saw the result as proof positive that persons suspected of terrorist acts can and should be handled through the justice system in place before attacks on Washington and New York set the stage for efforts to establish a newfangled system. (See here, for example; I'd written as much here before the verdict.)
The administration's called this new mechanism "military commissions," though, as the Supreme Court recognized in Hamdan v. Rumsfeld, in many respects -- respects particularly menacing to the U.S. tradition of fundamental fairness in the substance and procedure of criminal law -- the system deviates from past commissions. Despite Congress' near-rubberstamp of the system in the post-Hamdan Military Commissions Act, the newfangled system continues to falter: the latest halt occurred because military judges concluded that the government was asking them to act illegally.
Against this backdrop, consider now the op-ed that Mukasey published in the Wall Street Journal a week after the close of the Padilla case. In stark contrast with many other commentators, Mukasey saw the result not as an affirmation of existing practice, but rather as evidence that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
To solve the problem that he maintains is at hand, Mukasey commends his readers, and Congress, to give "careful scrutiny" to proposals for "a new adjudicatory framework" -- the so-called Homeland Security Court or, more often, National Security Court, idea that's been percolating in certain thinktanks for a year or more now. It remained out of the larger public discourse until a recent bipartisan publication in support.
Have yet to read anything in support that demonstrates genuine need for this legal contraption. Proponents tend to ignore statistical analyses -- like this chart in the ABA Journal -- indicating that the Justice Department's scarcely a failure in playing its part in the U.S. antiterrorism campaign. And just as the "new paradigm" proponents of a few years back (some of the same folks now calling for this "new court") acted as if history offered no cautionary lessons, proponents today do not mention difficulty and criticism (some from the pre-9/11 United States) visited upon other countries that've pursued this path. Think of the nonjury Diplock courts in Northern Ireland, or the special terrorism tribunals in places like Egypt, Turkey, and Peru. These examples show that such courts, though established in the name of enhancing security, not infrequently make guarantees of due process, public assumptions of the fairness and legitimacy of judicial decisions, and, in extreme cases, public safety, less secure.
With benefit of hindsight, Mukasey's August op-ed looks much like an audition for the position of next Attorney General. And with more than a year remaining for implementation, the Senate ought to use the confirmation hearings to test whether the nomination's intended to pave the way for a final Bush legacy: for the 1st time in the history of a centuries-old country that's faced many a threat to peace, even to its very existence, establishment of a permanent, due-process-lite National Security Court.