Scalia Cites False Information in Habeas Corpus Dissent

To bolster his argument that the Guantánamo detainees should be denied the right to prove their innocence in federal courts, Justice Antonin Scalia wrote in his dissent in Boumediene v. Bush: "At least 30 of those prisoners hitherto released from Guantánamo have returned to the battlefield." It turns out that statement is false.

According to a new report by Seton Hall Law Center for Policy and Research, "The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. The '30' number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely."

The largest possible number of detainees who could have "returned to the fight" is 12; however, the Department of Defense has no system for tracking the whereabouts of released detainees. The only one who has undisputedly taken up arms against the United States or its allies, "ISN 220," was released by political officers of the DoD against the recommendations of military officers.

Scalia bolstered his hysterical claim that the Boumediene decision "will almost certainly cause more Americans to be killed" with stale information that was proven to be false one year ago. Professor Mark Denbeaux, director of the Seton Hall Center, said Scalia "was relying uncritically on information that originated with a party in the case before him."

The Supreme Court decided in a 5-4 decision that the Guantánamo detainees were entitled to file petitions for writ of habeas corpus to challenge their detention. More than 200 men who have been held for up to six years and have never been charged with a crime, will now have their day in court. Many were snatched from their homes, picked up off the street or in airports, or sold to the U.S. military by warlords for bounty.

Scalia, who sits on the highest court in the land, has acted as a loyal foot soldier for the executive branch of government.

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Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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Injustice at Guantanamo: Torture Evidence and the Military Commissions Act

The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to 'shake the camera in the interrogation room' and 'cause severe internal injury,'" the report says.

The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.

Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues.

Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.

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Guantánamo Detainees' Fate at Stake in Boumediene

The Supreme Court will hear arguments on Wednesday in Boumediene v. Bush. Most of the 34 detainees whose fate hangs in the balance in this case were brought to Guantánamo after being picked up by bounty hunters or tribesmen in Afghanistan and Pakistan. Yet the Bush administration has fought hard to keep them away from any independent court where they could contest the legality of their confinement.

In February, two judges on a three-judge panel of the D.C. Circuit Court of Appeals upheld the provision of the Military Commissions Act of 2006 that strips the statutory rights of all Guantánamo detainees to have their habeas corpus petitions heard by U.S. federal courts. The Supreme Court will decide in Boumediene whether these men still have a constitutional right to habeas corpus.

If the lower court decision is left to stand, they can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention.

Background on the Guantánamo cases

In June 2004, the Supreme Court decided Rasul v. Bush, which upheld the right of those detained at Guantánamo to have their petitions for habeas corpus heard by U.S. courts, under the federal habeas statute.

The ink was barely dry on Rasul when Bush created the Combatant Status Review Tribunals, ostensibly to comply with the Rasul ruling. But these tribunals amounted to an end-run around Rasul. They were established to determine whether a detainee is an enemy combatant.

At the end of last term, the Supreme Court struck down Bush's military commissions in Hamdan v. Rumsfeld because they did not comply with due process guarantees in the Uniform Code of Military Justice and the Geneva Conventions. Military commissions are criminal courts to try prisoners for war crimes.

Then, in October of last year, in another end run, this time around Hamdan, Bush rammed the Military Commissions Act of 2006 through a Congress terrified of appearing soft on terror in the upcoming midterm elections. The Act does many things, but it notably amends the habeas corpus statute to strip statutory habeas rights from all Guantánamo detainees.

Do detainees retain constitutional right to habeas corpus?

The two-judge majority in Boumediene upheld the Military Commissions Act's stripping of statutory habeas jurisdiction that the Supreme Court had recognized in Rasul.

Art. I of the Constitution contains the Suspension Clause, which says that Congress can suspend the right of habeas corpus only in times of rebellion or invasion when the public safety may require it. We are not now in a state of invasion or rebellion, and Congress did not make such a finding.

The two-judge majority in Boumediene said: (1) in the absence of a statutory habeas right (which Congress eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign's territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it.

This reasoning is erroneous for three reasons.

First, the Supreme Court held in INS v. St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." The high court in Rasul cited St. Cyr.

Second, although the Boumediene majority relies on the treaty that says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme Court rejected that argument in Rasul, when it said: "By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241."

Third, although the Rasul Court was analyzing the pre-Military Commissions Act habeas statute, it also cited Johnson v. Eisentrager, which construed the constitutional right of habeas corpus. The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, then tried and convicted of war crimes by an American military commission in Nanking.

The Eisentrager court listed six factors to determine whether an alien is entitled to constitutional habeas jurisdiction in U.S. courts. These factors were cited in Rasul, which said:

"In reversing that determination, this Court [in Eisentrager] summarized the six critical facts in the case:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

"On this set of facts, the [Eisentrager] Court concluded, “no right to the writ of habeas corpus appears.”

The Rasul court continued:

"Petitioners in these [Guantánamo] cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

"Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus."

Combatant Status Review Tribunals not adequate substitute for habeas corpus

In Boumediene, the Bush administration asked the Court of Appeals to review the Combatant Status Review Tribunals. But the court declined, saying it had an inadequate record before it.

The Combatant Status Review Tribunals do not provide a meaningful opportunity to challenge detention. The prisoner is not entitled to an attorney, only a "personal representative," and anything the detainee tells his personal representative can be used against him. After reviewing the cases of 393 detainees, a Seton Hall legal team found that in 96 percent of the cases, the government had not produced any witnesses or presented any documentary evidence to the detainee before the hearing. Detainees were allowed to see only summaries of the classified evidence offered against them, and that evidence was always presumed to be reliable and valid. Requests by detainees for witnesses were rarely granted.

In addition, the personal representatives said nothing in 14 percent of the hearings and made no substantive comments 30 percent of the time. Some personal representatives even advocated for the government's position. In three cases, the detainee was found to be "no longer an enemy combatant," but the military continued to convene tribunals until they were found to be enemy combatants. These detainees were never told of the favorable ruling and there was no indication they were informed or participated in the second or third hearings.

As the dissenter in Boumediene pointed out, the procedure set up in the Detainee Treatment Act for reviewing decisions of the Combatant Status Review Tribunals "is not designed to cure these inadequacies. The court may review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards. Because the detainee still has no means to present evidence rebutting the government's case - even assuming the detainee could learn of it contents - assessing whether the government has more evidence in its favor than the detainee is hardly the proper antidote."

The suspension of habeas corpus will certainly have profound effects on non-citizen detainees. Consider the case of Abu Bakker Qassim, an Uighur from China who was held at Guantánamo for four years. He wrote in the New York Times: "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantánamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake."

Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg, Breyer, O'Connor and Kennedy voted with the majority. The dissenters were Justices Scalia, Thomas and Rehnquist.

The Supreme Court should reverse the Court of Appeals decision in Boumediene, probably in a 5-4 vote with Chief Justice Roberts and Justice Alito voting with the dissent. Surely the Court will not decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It should also conclude that the judicial review of the decisions of Combatant Status Review Tribunals does not provide an adequate substitute for constitutional habeas corpus.

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Michael Mukasey: Another Loyal Bushie

The Michael Mukasey Senate Judiciary Committee confirmation hearing has demonstrated that Mukasey cannot be relied upon to function independently as U.S. Attorney General. Nevertheless, Senators on the Senate Judiciary Committee seem so thrilled that Mukasey is not Alberto Gonzales that they're willing to vote for him even though he's another loyal Bushie. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, backed down on his promise to hold up the confirmation hearing until the administration turned over material his committee had requested regarding several investigations. Leahy said of Mukasey after the hearing, "He's at least answered the questions, which is better than his predecessor. He's going to be different than Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale."

But saying that Mukasey compares favorably to Alberto Gonzales is faint praise for the nominee. The former Attorney General resigned during a firestorm of criticism about his U.S. Attorney purges, and his repeated claims of memory loss when he testified before the Senate Judiciary Committee.

Mukasey doesn't seem to have a memory problem; he relied on a different excuse for dodging the Senators' hard questions: he hasn't been "read in on" the details of Bush policies, such as interrogation techniques, or the "Terrorist Surveillance Program." Mukasey claims he doesn’t know what water boarding is, so he can’t say if it constitutes torture. Say what? Mukasey’s claimed ignorance of water boarding is about as credible as his predecessor’s convenient claims of amnesia. Rear Adm. John Hutson (USN Ret.) testified at the confirmation hearing, "Other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish inquisition. It has been repudiated for centuries."

Mukasey made the incredible assertions that "we do not torture" and "I don't think people are mistreated" at Guantánamo. The main problem he sees with Guantánamo is that "nobody owns it," that is, there is jurisdictional overlap between the Justice and Defense Departments. Mukasey callously told Sen. Dick Durbin before the hearings that Guantánamo was used as a "fright wig," and after all, detainees receive "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans."

The rest of us haven't been “read in on” the classified details either. But we know that torture and inhuman treatment is Bush policy in spite of the fact it's illegal. The 2005 Department of Justice memos recently leaked to the New York Times say the government is engaging in water boarding, head slapping and exposing people to frigid temperatures, the International Committee of the Red Cross said the treatment of prisoners in U.S. custody is tantamount to torture, and the U.N. Human Rights Commission concluded that force feeding Guantánamo prisoners amounts to torture. We also know that Bush spied on Americans without warrants in spite of the Foreign Intelligence Surveillance Act (FISA) because he and Gonzales admitted it. And we know what water boarding is.

Some of Mukasey’s testimony before the Senate Judiciary Committee should have raised red flags in the minds of Democratic Senators. Mukasey refused to reject the notion that the President can constitutionally violate FISA. He misread the Supreme Court's recent decision in Hamdan v. Rumsfeld, which clearly rejected Bush's claim that Common Article 3 of the Geneva Conventions doesn't protect al-Qaeda prisoners. Common Article 3 prohibits torture and cruel or inhuman treatment of all prisoners. In fact, the Hamdan Court referred to possible liability under the U.S. War Crimes Act for those who violate Common Article 3. And when asked about contempt charges against witnesses who refuse to respond to congressional subpoenas, Mukasey said he would refuse to follow the statute that requires a U.S. attorney to refer contempt citations to a grand jury.

Nonetheless, Mukasey appears to be a shoo-in, with the Senate proceedings resembling a charade. One month before Mukasey was tapped by Bush for AG, the former federal judge penned an op-ed in the Wall Street Journal complaining about too much due process in terrorism prosecutions and advocating special courts where the Constitution wouldn't get in the way of catching the bad guys.

Mukasey's excessive zeal for Bush's war on terror was evident right after 9/11. In an October 2, 2001 hearing in his court, then-Judge Mukasey dismissed attorney Randall Hamud's claim that his client, 21-year-old Jordanian Osama Awadallah, had been physically beaten while in custody and had the marks to prove it. Mukasey retorted, "As far as the claim he was beaten, I will tell you he looks fine to me." The judge then refused to direct that Awadallah be examined by a doctor, and ordered that he be held indefinitely. The marks were under Awadallah's clothing. He was one of the more than 1,000 men of Arab descent rounded up after 9/11, and later exonerated. Many suffered similar abuse while in U.S. custody. Ronald Kuby was a defense attorney in the 1995 Omar Abdel Rahman case, over which Mukasey presided. Mukasey "was violating the rights of Arabs before it was popular," Kuby said. "It was very much like trying a case with two prosecutors, one of whom was wearing a black robe."

After librarians complained about the USA Patriot Act's provision that required them to tell the government what books we read, Mukasey mocked them in a Wall Street Journal op-ed. He described civil liberties concerns as "recreational hysteria."

Although former Judge Mukasey ruled Jose Padilla had the right to consult with counsel, he held that the President has the power to detain U.S. citizens caught on U.S. soil without charging them with a crime. When Sen. Dianne Feinstein questioned him, Mukasey incorrectly cited Hamdi v. Rumsfeld to support his position. Hamdi, unlike Padilla, was captured on the battlefield in Afghanistan, and the high court held that even Hamdi was entitled to some basic due process. In response to Feinstein's question about whether Congress has the right to set boundaries on military action under Article I of the Constitution, Mukasey demurred, arguing his "learning curve" was "steep."

Mukasey ducked the question of whether he would advise the President to allow unlawful enemy combatants habeas corpus rights at Guantánamo Bay. "I would not advise the President to grant rights beyond those that they already have," he told Sen. Lindsey Graham. In spite of the Military Commissions Act, which purports to deny these people statutory habeas rights, the Supreme Court will likely decide this term that they still have the constitutional right to habeas corpus.

At the committee hearing on Wednesday, Mukasey was introduced by his dear friend and law school buddy Joe Lieberman. No one is fanning the flames of war against Iran more than Lieberman. Bush/Cheney likely see Mukasey as a reliable ally who will help "legitimize" their impending illegal attack on Iran.

When Bush nominated Mukasey for attorney general, he declared Mukasey would "ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens." Mukasey, who refused to call water boarding torture, will likely support that "tool" in the war on terror. Mukasey told senators in advance of his hearings that he supports enhanced interrogation techniques, according to Newsweek's Michael Isikoff.

Michael Mukasey cannot be counted on to independently investigate the crimes of the White House. Elizabeth Holtzman, a former congresswoman who served on the House Judiciary Committee during the Nixon impeachment, advocated in a recent op-ed in the Progressive that the Senate should confirm Muksey only if he pledges to appoint a special prosecutor to investigate the Bush administration. That's what the Democratically-controlled Congress did in 1973 after Nixon nominated Elliot Richardson for attorney general. Richardson agreed, he was confirmed, and then appointed Archibald Cox as special prosecutor. Cox's investigations and summary dismissal resulted in the issuance of articles of impeachment against Nixon in the House Judiciary Committee followed by Nixon's resignation. It would be wonderful to have a Congress that once again stood up to the President when he breaks the law.

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Reining In an Out-of-Control Executive

Our Founding Fathers created three separate but co-equal branches of government to check and balance each other so no one branch would become all powerful. Indeed, James Madison wrote in the Federalist Papers, "The preservation of liberty requires that the three great departments of power should be separate and distinct." Madison warned, "The accumulation of all powers, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny." The American colonists were reacting against a police state.

More than 200 years later, we have another King George. In the last six years, George W. Bush has sought to accumulate all governing powers in the same hands - his. In the Declaration of Independence, the framers charged that the King "refused his Assent to Laws, the most wholesome and necessary for the public good." Bush has repeatedly violated the Constitution's command that the President "shall take Care that the Laws be faithfully executed," by breaking some and refusing to enforce others. The Constitution grants Congress the power to make laws; after both houses pass a bill, the President can only sign it or veto it. Bush, however, takes a different tack. He has vetoed just three bills, then quietly attached "signing statements" to more than 1,000 congressional laws, indicating his intent to follow only those parts with which he agrees.

In an end run around Congress and the courts, Bush secretly authorized the Terrorist Surveillance Program to conduct electronic surveillance without a judicial warrant, in violation of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment. Although two judges on a three-judge panel of the Sixth Circuit Court of Appeals ordered the dismissal of a lawsuit challenging the legality of Bush's spying program for lack of standing, the only two judges ever to rule on the merits declared the program illegal.

The Bush administration lied to Congress to get authority to invade Iraq. Long before the 9/11 terrorist attacks, Bush and his officials were planning to attack Iraq and change its regime. Dick Cheney's secret energy task force drew up maps of Iraq's oil fields to divvy up the black gold once we occupied that country. They then devised an elaborate scheme to convince the American people that Saddam Hussein posed a threat to the United States, notwithstanding overwhelming intelligence to the contrary. Since Bush launched "Operation Iraq Freedom," more than 3,600 American soldiers and tens of thousands of innocent Iraqis have died; many thousands more have been wounded. This invasion is a war of aggression, which violates the UN Charter, because it was neither executed in self-defense nor approved by the Security Council.

During the war, U.S. troops have been acting under rules of engagement - free-fire zones - that have led some to commit war crimes. For instance, the killing, execution-style, of 24 civilians in the Haditha Massacre, the execution of a disabled man, and the shooting of a wounded unarmed Iraqi in a mosque violate the Geneva Conventions which prohibit willful killing of civilians. Commanders, all the way up the chain to the commander-in-chief, could be convicted of war crimes if they should've known their subordinates would commit them and the commanders didn't stop or prevent it.

Bush's legal eagles, particularly David Addington and John Yoo, concocted elaborate "legal" arguments to justify the torture of prisoners. Never mind that international and American law forbid torture under all circumstances. Pursuant to a common plan to violate the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prisoners in U.S. custody are being tortured and abused. Prisoners have been subjected to water-boarding, attacks by dogs, sexual humiliation, and excruciatingly painful force-feeding.

The Bush administration has secretly rendered prisoners to other countries to be tortured. One former CIA agent observed, "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt."

Shortly after 9/11, the Bush gang set up a prison camp in Guantánamo, intending to create a legal black hole where they could hold prisoners for the rest of their lives without any judicial oversight. But the Supreme Court didn't buy the administration's argument that U.S. courts have no jurisdiction over Guantánamo because it's in Cuba. And the Court struck down Bush's original military commissions since they violated the Uniform Code of Military Justice and the Geneva Conventions.

The Supreme Court said in Berger v. United States that a prosecutor's job is to see that justice is done, not to politicize justice. But Bush's Department of Justice, the chief law enforcement agency in the government, has been seriously compromised. Several U.S. attorneys who refused to bring frivolous charges that would further Bush's political agenda, or who brought charges that didn't, were purged.

The White House is resisting congressional subpoenas that call for testimonial and documentary evidence about the U.S. attorney firing scandal. The deadline for Bush, Cheney and the Justice Department to produce documents in response to Senate Judiciary Committee subpoenas about the warrantless surveillance is July 18. In 1974, when the House Judiciary Committee passed three articles of impeachment against Richard Nixon, Article III charged refusal to comply with subpoenas during the Watergate hearings.

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No Unlawful Enemy Combatants at Guantanamo

In 2002, Donald Rumsfeld famously called the detainees at Guantánamo "the worst of the worst." General Richard B. Myers, former chairman of the Joint Chiefs of Staff, warned they were "very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." These claims were designed to justify locking up hundreds of men and boys for years in small cages like animals.

George W. Bush lost no time establishing military commissions to try the very "worst of the worst" for war crimes. But four and a half years later, the Supreme Court decided in Hamdan v. Rumsfeld that those commissions violated the Uniform Code of Military Justice and the Geneva Conventions. So Bush dusted them off, made a few changes, and rammed his new improved military commissions through the Republican Congress last fall.

Only three detainees have been brought before the new commissions. One would expect the people Bush & Co. singled out for war crimes prosecutions would be high-level al-Qaeda leaders. But they weren't. The first was David Hicks, who was evidently not so dangerous. The U.S. military made a deal that garnered Hicks a misdemeanor sentence and sent him back to Australia.

Salem Ahmed Hamdan, a Yemeni who used to be Osama bin Laden's chauffeur, was the second. Hamdan, whose case had been overturned by the Supreme Court, was finally brought before a military commission June 4 for arraignment on charges of conspiracy and material support for terrorism.

The third defendant was Omar Khadr, a Canadian citizen, who appeared for arraignment the same day as Hamdan. Khadr was 15 years old when he arrived at Guantánamo. He faced charges of conspiracy, murder, attempted murder, spying, and supporting terrorism.

On June 4, much to Bush's dismay, two different military judges dismissed both Hamdan's and Khadr's cases on procedural grounds.

The Military Commissions Act that Congress passed last year says the military commissions have jurisdiction to try offenses committed by alien unlawful enemy combatants. Unlawful enemy combatants are defined as (1) people who have engaged in hostilities or purposefully and materially supported hostilities against the United States or its allies; or (2) people who have been determined to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or another competent tribunal. The Act says that a determination of unlawful enemy combatant status by a CSRT or another competent tribunal is dispositive.

But there are no "unlawful" enemy combatants at Guantánamo. There are only men who have been determined to be "enemy combatants" by the CSRTs. The Act declares that military commissions "shall not have jurisdiction over lawful enemy combatants." In its haste to launch post-Hamdan military commissions, Bush's legal eagles didn't notice this discrepancy. That is why the charges were dismissed.

The Bush administration may try to fix the procedural problem and retry Khadr and Hamdan. But regardless of whether Guantánamo detainees are lawful or unlawful enemy combatants, the Bush administration's treatment of them violates the Geneva Conventions. Lawful enemy combatants are protected against inhumane treatment by the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three.

Omar Khadr was captured in Afghanistan and brought to Guantánamo when he was 15 years old. In both places, he has been repeatedly tortured and subjected to inhumane treatment. At Bagram Air Base, Khadr was denied pain medication for his serious head and eye shrapnel wounds. At Guantánamo, his hands and feet were shackled together, he was bolted to the floor and left there for hours at a time. After he urinated on himself and on the floor, U.S. military guards mopped the floor with his skinny little body. Khadr was beaten in the head, dogs lunged at him, and he was threatened with rape and the removal of his body parts.

Khadr cried frequently. He has nightmares, sweats and hyperventilates, and is hypervigilant, hearing sounds that he can't identify. When Khadr's lawyer saw him for the first time in 2004, he thought, "He's just a little kid."

Why was Khadr treated this way? He comes from a family allegedly active in al-Qaeda. His charges stem from an incident where the U.S. sent Afghans into a compound where Khadr and others were located. The people inside the compound killed the Afghans and began firing at the U.S. soldiers. The Americans dropped two 500-pound bombs on the compound, killing everyone inside except Khadr. After Khadr threw a hand grenade which killed an American, the soldiers shot Khadr, blinding and seriously wounding him. Khadr begged them in English to finish him off. He was then taken to Baghram and later to Guantánamo.

According to Donald Rehkopf, Jr., co-chair of the National Association of Criminal Defense Lawyers Military Law Committee, "The government has steadfastly refused to allow hearings on this alleged [unlawful enemy combatant] status because there are so many prisoners at GTMO that were not even combatants, much less 'unlawful' ones. Khadr is in an unusual situation because he has a viable 'self-defense' claim - we attacked the compound that he and his family were living in, and the fact that he was only 15 at the time."

If Khadr were a U.S. citizen, he would not even be subject to trial by court-martial because of his age. When the Supreme Court ruled in 2005 that children under 18 at the time of their crimes could not be executed, it said that youths display a "lack of maturity and an underdeveloped sense of responsibility" that "often results in impetuous and ill-considered actions and decisions." A juvenile, the Court found, is more vulnerable or susceptible to negative influences and his character is not as well-formed as that of an adult. "From a moral standpoint," Justice Kennedy wrote for the majority, "it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." The Bush administration's treatment of Omar Khadr flies in the face of the Court's reasoning.

The United States may be able to retry Khadr and Hamdan. They have a few days to file an appeal. But the Court of Military Commissions Review hasn't even been established yet, so it's unclear where the appeals would be brought.

The Military Commissions Act, which denies basic due process protections, including the right to habeas corpus, is a disgrace. But an even bigger disgrace is the concentration camp the United States maintains at Guantánamo Bay, Cuba. The Act should be repealed and the Guantánamo prison should be shut down immediately.

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Coming Up Short on Habeas for Detainees

The Bush administration has stopped the Supreme Court from giving the Guantánamo detainees their day in court - at least for now.

In Boumediene v. Bush and Al Odah v. United States, 45 men challenged the constitutionality of the habeas corpus-stripping provision of the Military Commissions Act that Congress passed last year.

On Monday Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg fell one vote short of the four needed to grant review of the lower court decision which went against the detainees. It was no surprise that Justices John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas voted to deny review.

Two justices - John Paul Stevens and Anthony Kennedy - declined review on procedural grounds, saying the detainees had to exhaust their remedies before appealing to the high court. That means they must first go through the appeals process of the Combatant Status Review Tribunals (CSRTs).

The CSRTs are used to determine whether a detainee is an unlawful enemy combatant. They deny basic due process protections such as the rights to counsel, to see evidence, and to confront adverse witnesses.

The procedure for challenging a CSRT decision is found in the Detainee Treatment Act (DTA). It is limited to determining whether the decision was consistent with the CSRT's standards and procedures, and whether the use of those standards and procedures was legal and constitutional.

There are two issues the Supreme Court would have to decide if it did review this case. First, do the Guantánamo detainees have a constitutional right to habeas corpus? In 2004, the Court held in Rasul v. Bush that the habeas statute applied to those detainees because the United States maintains complete jurisdiction and control over Guantánamo.

Second, even if the Court applied its Rasul reasoning to constitutional habeas corpus, it would then need to determine whether the procedure for contesting Combatant Status Review Tribunal decisions constitutes an adequate substitute for habeas corpus.

It should have been a no-brainer for Justices Stevens and Kennedy to vote to hear this case. The DTA's review procedures cannot cure the sub-standard standards of the Combatant Status Review Tribunals.

Since Justice Stevens authored the Court's two prior decisions upholding rights for the Guantánamo detainees, his vote in this case is puzzling. But if he provided the fourth vote for review, there's no guarantee he could garner the five votes needed to overturn the lower court ruling. Justices Stevens and Kennedy left open the option of future review if "the government has unreasonably delayed proceedings" or causes the detainees "some other and ongoing injury." Justice Stevens evidently thought it prudent to side with Justice Kennedy at this point to cultivate the latter's vote on the merits down the road.

Meanwhile, the detainees languish in confinement that could last the rest of their lives if they are denied the right to have a U.S. judge hear their habeas corpus petitions. Of the 755 men and boys held at Guantánamo in the past five years, Bush has called only 14 of them "high value detainees." Just 10 - not including any of the 45 men appealing the current case - have been charged with a crime.

Although the Supreme Court has stood up to the Bush administration in the past, it is precariously balanced and cannot be relied upon to consistently provide justice. Congress has finally shown the will to challenge the Bush agenda - on the Iraq war, and the U.S. Attorney firing scandal. The ball is in Congress's court to rescind the habeas-stripping provisions of the Military Commissions Act.

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Conscientious Objector Faces Court-Martial

On March 6, the court-martial will begin in Germany for Army Specialist Augustín Aguayo, who faces up to seven years in prison for refusing to deploy to Iraq for a second tour of duty. His petition for habeas corpus was denied by a three-judge panel of the D.C. Circuit Court of Appeals on February 16. Judges Sentelle and Randolph were the same jurists who recently upheld the provision of the Military Commissions Act that strips habeas corpus rights from Guantánamo detainees.

Before his first deployment to Iraq, Aguayo discovered he was a conscientious objector. When he began to train in arms, Aguayo had great difficulty firing at human-shaped silhouettes and stabbing human mannequins. "During basic training," he recalls, "I felt guilty when I had to pick up and hold a weapon and practice killing with it."

When Aguayo and his wife, Helga, saw an article on the Internet about conscientious objector Stephen Funk, they realized that Aguayo was a conscientious objector.

After he applied to be a conscientious objector three years ago, Aguayo was sent to Iraq as a medic. He refused to load his gun. But instead of treating him as a non-combatant, he was given guard duty and placed in dangerous positions with an unloaded weapon.

A week after Aguayo's habeas corpus petition was denied on August 24, 2006, his unit was slated to deploy to Iraq for the second time. On September 1, 2006, Aguayo went AWOL and missed his unit's deployment to Iraq. He turned himself in to the Army the following day.

Rather than court-martialing Aguayo, Army personnel told him he would be going to Iraq anyway, even if they had to handcuff him and shackle him to the plane. Aguayo fled from the military base in Germany and turned himself in once again on September 26, 2006. He was shipped back to Germany where he will be tried by court-martial this week.

In his statement to the Court of Appeals, Aguayo wrote: "In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and harmful."

"I also oppose war," Aguayo added, "because I have seen first-hand the direct result of deployments to war zones. As a result of Operation Iraqi Freedom II, I have seen many veterans whose lives have been shattered. Many men came back with missing parts, and countless physical and emotional scars, such as Post Traumatic Stress Disorder. I have personally seen my comrades come back to commit suicide, drink themselves to death, and develop a strong addiction to drugs. It is obvious to me that these men’s lives were destroyed by war. What participation in war does to our own soldiers is another reason why war is fundamentally immoral and wrong."

Aguayo received positive recommendations from the chaplain and Capt. Sean Foster, who held Aguayo's conscientious objector hearing in Tikrit, Iraq. They both found Aguayo's beliefs to be sincere and recommended he be granted conscientious objector status.

But the Court of Appeals sided with four officers who recommended Aguayo's petition be denied. None of the four interviewed Aguayo. The appellate court mentioned that Aguayo was agnostic and cited a report that said Aguayo lacks a "religious foundation" to be a conscientious objector.

Aguayo, who was born in Mexico, is a naturalized U.S. citizen. On February 23, the Mexican legislature condemned the military proceedings pending against Aguayo. Senator Silvano Aureoles called Aguayo "a prisoner of conscience and one more victim of president George W. Bush's militaristic eagerness."

Augustín Aguayo is represented by National Lawyers Guild lawyers James Klimaski, Peter Goldberger, and James Feldman. For more information on Aguayo's case, see http://www.aguayodefense.org/.

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Why Boumediene Was Wrongly Decided

Last week, in Boumediene v. Bush, two judges on a three-judge panel of the D.C. Circuit Court of Appeals upheld the provision of the Military Commissions Act of 2006 that strips the rights of all Guantánamo detainees to have their habeas corpus petitions heard by U.S. federal courts. If that decision is left to stand, the men and boys detained at Guantánamo can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention. In my opinion, this appellate decision will likely be overturned by the Supreme Court next term.

A little background:

In November 2001, President Bush established Military Commissions to try non-citizens accused of war crimes.

In June 2004, the Supreme Court decided Rasul v. Bush, which upheld the right of those detained at Guantánamo to have their petitions for habeas corpus heard by U.S. courts, under the federal habeas statute.

The ink was barely dry on Rasul when Bush created the Combatant Status Review Tribunals, ostensibly to comply with the Rasul ruling. But, as I will explain, setting up these tribunals was really an end-run around Rasul. They were established to determine whether a detainee is an enemy combatant. They are not criminal courts, like the military commissions.

On December 31, 2005, Congress passed the Detainee Treatment Act, which included the famous McCain "anti-torture" amendment. But it also stripped habeas corpus rights from Guantánamo detainees who had not already filed habeas petitions before December 31, 2005. Some 200 detainees had pending petitions.

At the end of last term, the Supreme Court struck down Bush's military commissions in Hamdan v. Rumsfeld because they did not comply with due process guarantees in the Uniform Code of Military Justice and the Geneva Conventions.

Then, in October of last year, in another end run, this time around Hamdan, Bush rammed the Military Commissions Act of 2006 through a Congress terrified of appearing soft on terror in the upcoming midterm elections. The Act does many things, but it notably strips statutory habeas corpus rights from all Guantánamo detainees, even those whose petitions were pending on December 31, 2005.

The two-judge majority in Boumediene upheld the Military Commissions Act's stripping of statutory habeas jurisdiction that the Supreme Court had recognized in Rasul. (Congress had passed the original habeas statute, and amended it in the Military Commissions Act). The Boumediene decision found the Act's elimination of habeas to be constitutional.

Art. I of the Constitution contains the Suspension Clause, which says that Congress can suspend the right of habeas corpus only in times of rebellion or invasion when the public safety may require it. As the dissenter in Boumediene pointed out, Congress has only suspended habeas corpus four times before, and made findings of rebellion or invasion in each case. We are not now in a state of invasion or rebellion, and Congress did not make such a finding.

The two-judge majority in Boumediene said: (1) in the absence of a statutory habeas right (which Congress had eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign's territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it.

This reasoning is erroneous for three reasons:

First, the Supreme Court held in INS v. St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." The Supreme Court in Rasul cited St. Cyr.

Second, although the Boumediene majority relies on the treaty that says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme Court rejected that argument in Rasul, when it said: "By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241."

Third, although the Rasul Court was analyzing the pre-Military Commissions Act habeas statute, it also cited Johnson v. Eisentrager, which construed the constitutional right of habeas corpus. The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, and then tried and convicted of war crimes by an American military commission in Nanking.

The Eisentrager court cited six factors to determine whether an alien is entitled to constitutional habeas jurisdiction in U.S. courts. These factors were cited in Rasul, which said:
In reversing that determination, this Court [in Eisentrager] summarized the six critical facts in the case:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

On this set of facts, the [Eisentrager] Court concluded, “no right to the writ of habeas corpus appears.”
The Rasul court said:
Petitioners in these [Guantánamo] cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus.
Congress can suspend habeas corpus if there is an adequate substitute for it. In Boumediene, the Bush administration asked the Court of Appeals to review the Combatant Status Review Tribunals. But the court declined, saying it had an inadequate record before it.

The Combatant Status Review Tribunals do not provide a meaningful opportunity to challenge detention. The prisoner is not entitled to an attorney, only a "personal representative," and anything the detainee tells his personal representative can be used against him. After reviewing the cases of 393 detainees, a Seton Hall legal team found that in 96 percent of the cases, the government had not produced any witnesses or presented any documentary evidence to the detainee before the hearing. Detainees were allowed to see only summaries of the classified evidence offered against them, and that evidence was always presumed to be reliable and valid. Requests by detainees for witnesses were rarely granted.

In addition, the personal representatives said nothing in 14 percent of the hearings and made no substantive comments 30 percent of the time. Some personal representatives even advocated for the government's position. In three cases, the detainee was found to be "no longer an enemy combatant," but the military continued to convene tribunals until they were found to be enemy combatants. These detainees were never told of the favorable ruling and there was no indication they were informed or participated in the second or third hearings.

As the dissenter in Boumediene pointed out, the procedure set up in the Detainee Treatment Act for reviewing decisions of the Combatant Status Review Tribunals "is not designed to cure these inadequacies. The court may review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards. Because the detainee still has no means to present evidence rebutting the government's case - even assuming the detainee could learn of it contents - assessing whether the government has more evidence in its favor than the detainee is hardly the proper antidote."

The suspension of habeas corpus will certainly have profound effects on non-citizen detainees. Consider the case of Abu Bakker Qassim, an Uighur from China who was held at Guantánamo for four years. He wrote in the New York Times: "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantánamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake."

How did Qassim obtain his release from Guantánamo? "It was only the country's centuries-old commitment to allowing habeas corpus challenges that put that mistake right—or began to. In May, on the eve of a court hearing in my case, the military relented, and I was sent to Albania along with four other Uighurs," Qassim said. He added:
Without my American lawyers and habeas corpus, my situation and that of the other Uighurs would still be a secret. I would be sitting in a metal cage today. Habeas corpus helped me to tell the world that Uighurs are not a threat to the United States or the West, but an ally. Habeas corpus cleared my name—and most important, it let my family know that I was still alive.
Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg, Breyer, O'Connor and Kennedy voted with the majority. The dissenters were Justices Scalia, Thomas and Rehnquist.

I predict the Supreme Court will reverse the Court of Appeals decision in Boumediene, probably in a 5-4 vote with Chief Justice Roberts and Justice Alito voting with the dissent. I doubt whether the Court will decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It will likely decide that the judicial review of the decisions of Combatant Status Review Tribunals does not provide an adequate substitute for constitutional habeas corpus.

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Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, "Corporate C.E.O.'s seeing this should ask firms to choose between lucrative retainers and representing terrorists."

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: "I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service."

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding "torture." Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the "war on terror" and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any "person" -- U.S. citizen or not -- due process of law. The presumption of innocence is enshrined in our legal system.

Bush's attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he's spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: "First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me."

George W. Bush must immediately renounce Stimson's threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

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Spinning Suicide

They are smart, they are creative, they are committed. They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.
Rear Adm. Harry B. Harris Jr., commander of Guantánamo prison camp

Three men being held in the United States military prison camp at Guantánamo Bay, Cuba, killed themselves by hanging in their cells on Saturday. The Team Bush spin machine immediately swept into high gear.

Military officials characterized their deaths as a coordinated protest. The commander of the prison, Rear Adm. Harry B. Harris Jr., called it "asymmetrical warfare."

Colleen Graffy, the deputy assistant secretary of state for public diplomacy, said taking their lives "certainly is a good PR move."

Meanwhile, George W. Bush expressed "serious concern" about the deaths. "He stressed the importance of treating the bodies in a humane and culturally sensitive manner," said Christie Parell, a White House spokeswoman.

How nice that Bush wants their bodies treated humanely, after treating them like animals for four years while they were alive. Bush has defied the Geneva Conventions' command that all prisoners be treated humanely. He decided that "unlawful combatants" are not entitled to humane treatment because they are not prisoners of war.

Article 3 Common to the Geneva Conventions requires that no prisoners, even "unlawful combatants," may be subjected to humiliating and degrading treatment. Incidentally, the Pentagon has decided to omit the mandates of Article 3 Common from its new detainee policies.

Bush resisted the McCain anti-torture amendment to a spending bill at the end of last year, sending Dick Cheney to prevail upon John McCain to exempt the CIA from its prohibition on cruel, inhuman and degrading treatment of prisoners. When McCain refused to alter his amendment, Bush signed the bill, quietly adding one of his "signing statements," saying that he feels free to ignore the prohibition if he wants to.

Bush & Co. are fighting in the Supreme Court to deny the Guantánamo prisoners access to US courts to challenge their confinement. The Court will announce its decision in Hamdan v. Rumsfeld by the end of this month.

This hardly sounds like a man who believes in humane treatment for live human beings.

The three men who committed suicide, Mani bin Shaman bin Turki al-Habradi,Yasser Talal Abdulah Yahya al-Zahrani, and Ali Abdullah Ahmed, were being held indefinitely at Guantánamo. None had been charged with any crime. All had participated in hunger strikes and been force-fed, a procedure the United Nations Human Rights Commission called
"torture."

"A stench of despair hangs over Guantánamo. Everyone is shutting down and quitting," said Mark Denbeaux, a lawyer for two of the prisoners there. His client, Mohammed Abdul Rahman, "is trying to kill himself" in a hunger strike. "He told us he would rather die than stay in Guantánamo," Denbeaux added.

While the Bush administration is attempting to characterize the three suicides as political acts of martrydom, Shafiq Rasul, a former Guantánamo prisoner who himself participated in a hunger strike while there, disagrees. "Killing yourself is not something that is looked at lightly in Islam, but if you're told day after day by the Americans that you're never going to go home or you're put into isolation, these acts are committed simply out of desperation and loss of hope," he said. "This was not done as an act of martyrdom, warfare or anything else."

"The total, intractable unwillingness of the Bush administration to provide any meaningful justice for these men is what is at the heart of these tragedies," according to Bill Goodman, the legal director of the Center for Constitutional Rights, which represents many of the Guantánamo prisoners.

Last year, at least 131 Guantánamo inmates engaged in hunger strikes, and 89 have participated this year. US military guards, with assistance from physicians, are tying them into restraint chairs and forcing large plastic tubes down their noses and into their stomachs to keep them alive. Lawyers for the prisoners have reported the pain is excruciating.

The suicides came three weeks after two other prisoners tried to kill themselves by overdosing on antidepressant drugs.

Bush is well aware that more dead US prisoners would be embarrassing for his administration, especially in light of the documented torture of prisoners at Abu Ghraib and the execution of civilians in Haditha.

More than a year ago, the National Lawyers Guild and the American Association of Jurists called for the US government to shut down its "concentration camp" at Guantánamo. The UN Human Rights Commission, the UN Committee against Torture, UN Secretary General Kofi Annan, and the Council of Europe, have also advocated the closure of Guantánamo prison.

Bush says he would like to close the prison, but is awaiting the Supreme Court's decision. At the same time, however, his administration is spending $30 million to construct permanent cells at Guantánamo.

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UN to US: Close Guantánamo

For the second time this year, a United Nations body has chastised the United States for its torture of prisoners and told it to close its prison camp at Guantánamo Bay, Cuba. In February, the UN Human Rights Commission criticized the US government for force-feeding hunger strikers there - calling it torture - and urged the United States to "close the Guantánamo Bay detention facilities without further delay."

Yesterday, the Committee Against Torture said that the United States "should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured."

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it became part of US law under the Supremacy Clause of the Constitution. All parties to the Convention are required to file reports documenting their progress in implementing their obligations under the Convention.

The Committee Against Torture is charged with evaluating those compliance reports. In an 11-page document released yesterday, the committee evaluated the United States' report, which was filed three and one-half years late.

In its evaluation, the committee stated it was "concerned by reliable reports of acts of torture or cruel, inhuman and degrading treatment or punishment committed by certain members of the [United States'] military or civilian personnel in Afghanistan and Iraq," some of which resulted in death.

The committee called on the US to rescind any interrogation technique - including sexual humiliation, water boarding, short shackling and using dogs to induce fear - that constitutes torture or cruel, inhuman or degrading treatment or punishment.

Detaining persons indefinitely without charge, as the United States has done with most of the 500 or so prisoners at Guantánamo, constitutes a per se violation of the Convention, the committee noted.

The committee was particularly concerned that the Detainee Treatment Act of 2005, which Congress passed last December, aims to strip US federal courts of jurisdiction to hear habeas corpus petitions filed by or on behalf of Guantánamo detainees. This issue is pending in the Supreme Court in Hamdan v. Rumsfeld, which will be decided by the end of June.

Other concerns included forced disappearances, which are considered to be torture; the practice of rendition of prisoners to countries where they face a real risk of torture; and the establishment of secret detention facilities which are not accessible to the International Committee of the Red Cross.

The United States "should promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates," the committee declared.

It noted with disapproval that there have been no prosecutions initiated under the federal torture statute.

Last week, a district court judge in Virginia dismissed an "extraordinary rendition" lawsuit brought by the American Civil Liberties Union on behalf of a German citizen against former CIA director George Tenet and 10 other CIA employees. Khaled el-Masri alleged that he was beaten and injected with drugs after being seized near the Macedonian border with Albania, then taken to Afghanistan and held for five months.

In dismissing the suit, Judge T.S. Ellis said Mr. el-Masri's "private interests must give way to the national interest in preserving state secrets."

On Thursday, three or four Guantánamo prisoners attempted suicide. Early reports indicated that when the guard force tried to intervene and save the life of one prisoner, other prisoners attempted to prevent them from rescuing the suicidal prisoner.

By the end of the day, the story provided by the US military had changed. In the later report, the military claimed that a group of prisoners had lured guards into the compound by staging a suicide attempt and then attacked the guards.

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