Mukasey & Congress: AG Changes His Tune But The Song Remains The Same

In keeping with the myriad outrages that it has perpetrated in fighting the so-called Global War on Terror, the Bush administration has not lacked for cojones.

Congress was a mere handmaiden or not consulted at all when the White House decided to establish a parallel court system to try terror suspects, when it tossed the Geneva Conventions into the Potomac and embraced the use of torture, when it established a plan to secretly rendition suspects to the Rumsfeld Gulag, and when it twice refused to heed the Supreme Court's warnings that these suspects could not be stripped of all constitutional rights.

But when the top court ruled in June that a provision of the Military Commissions Act of 2006 that denied Guantánamo Bay detainees the right to file habeas petitions with civilian courts for determinations as to whether they were being held illegally, the Justice Department found itself painted into a tight corner entirely of its own making.

How to handle the tricky matter of making available civilian courts to Gitmo detainees, some of whom are seriously nasty people?

What should be done with Gitmo detainees now that the whole reason for the prison for so-called enemy combatants has been undermined by the Supremes?

And pray tell what would happen if detainees whose home countries will not accept their return are released inside the U.S.?

Attorney General Michael Mukasey, who has shown that his own cojones are even bigger than predecessors John Ashcroft and Albert Gonzalez in telling Congress to buzz off while the Justice Department did the White House's bidding, suddenly has had a change of heart. Or so it would seem.

In a speech yesterday to a friendly audience at the American Enterprise Institute, Mukasey whined that the Supremes had "stopped well short" of detailing how suspects will be allowed to challenge their detentions and called on Congress to help the Justice Department out of that tight corner because it is "well within the historic role and competence of Congress and the executive branch to attempt to resolve them."

The court did not address -- nor was it its responsibility to address -- how this mess is to be resolved.

As it is, the cases of about 200 of the 265 Gitmo detainees are currently under review in U.S. District Court in Washington, where judges have said they want to set rules governing the detainees' hearings by year's end. But Mukasey, himself a former federal judge, made it clear yesterday that he opposes his one-time peers taking on that responsibility.

"One could say, I suppose, that these questions should be left to the courts to resolve through litigation, but I do not think that is the most prudent course," Mukasey said. "Unless Congress acts, the lower federal courts will determine the specific procedural rules that govern the more than 200 cases that are now pending. With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty."

But inconsistency and uncertainty are the least of Mukasey's concerns.

What has Mukasey's undies in a knot is that the ability of the administration to co-opt civilian judges is extremely limited, while Congress is more easily manipulated and something that the administration and the AG have been terrifically adept at doing.

Mukasey commenced his own smoking blowing before he was sworn in by promising at his confirmation hearings to look into the legality of waterboarding, something he of course never intended to do. Since then he has shown zero independence from his White House masters and has come up with legal flotsam such as his view that Justice Department lawyers cannot commit crimes when they act under the orders of a president and a president cannot commit a crime when he acts under advice of these lawyers.

Bringing congressfolk on board to try to undercut nosy judges is particularly important when it comes to judicial reviews of the evidence in terror cases.

The administration has fought tooth and nail to keep this evidence secret by using the bogus contention that national security might be compromised. The real reason is that the evidence typically has been shoddy, coerced through the use of torture, or entirely lacking as an appeals court recently ruled in one case.

Civil rights advocates and congressional Democrats were quick to fire back at the attorney general.

"What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays," said Vincent Warren, executive director of the Center for Constitutional Rights, which has led many of the Gitmo legal challenges. "The Supreme Court has definitively spoken, and there is no need for congressional intervention."

Patrick Leahy of Vermont, who has repeatedly crossed swords with Mukasey as chairman of the Senate Judiciary Committe, said the issue would be "more responsibly addressed in the next Congress with a new president," while Russ Feingold of Wisconsin, a Judiciary Committee member, called Mukasey's request "an attempt to create an election-year security issue where there isn't one."

So while Mukasey's suddenly warm embrace of Congress would seem to be a rare instance in which the administration has changed its tune, in reality the song remains very much the same.

Photograph by Chip Somodevilla/Getty Images