Jonathan Hafetz directs litigation for the Liberty & National Security Project of the Brennan Center for Justice at NYU School of Law, and is the author of a forthcoming book on post-September 11 detention policy, to be published by NYU Press.
Seth Waxman, attorney for prisoners detained at Guantanamo Bay, Cuba, during oral arguments at the Supreme Court on Wednesday. (AP Photo/Lawrence Jackson)
The Guantanamo detainee cases returned to the Supreme Court Wednesday for yet another round in the longstanding battle over legal rights in the administration's "war on terror." Remarkably, the 300-plus men at Guantanamo still remain in legal limbo after six years of imprisonment. The prevailing mood among members of the Court was that enough is enough.
The recent battle over Michael Mukasey’s nomination for attorney general tested America’s faith in its Constitution and values. America fared poorly.
On Nov. 8, the Senate voted 53-40 to confirm Mukasey’s nomination. The pivotal moment, however, came the week before when two key Democrats on the Senate Judiciary Committee, California’s Dianne Feinstein and New York’s Charles Schumer, announced their support for Mukasey.
Mukasey earned a well-deserved reputation for intelligence and integrity during his 19 years of service on the federal bench. But before approving him for the nation’s top law enforcement position, senators specifically asked Mukasey to declare torture illegal. Mukasey was unable to do so.
A Guantanamo detainee holds onto a fence as a U.S. military guard walks past. (Photo by the Associated Press)
Last week's surprise rulings by two military judges at Guantanamo Bay threw into turmoil the president's effort to try suspected terrorists by military commissions. The rulings halted current proceedings involving two detainees and sparked new debates about the wisdom and legality of the commissions themselves. But larger questions remain about the role that such military commissions fill at Guantanamo, where the overriding purpose is to detain individuals without any trial at all. That purpose is obscured by the continued and misplaced focus on military trials -- a product of our cultural fascination with courtroom drama.
Last week, Congress passed legislation giving the president a blank check to wage his “war on terror.” The new law, known as the Military Commissions Act of 2006 (MCA), is rife with problems. It gives the president drag-net detention power, sets up a second-class system of military justice for non-citizens, and weakens the Geneva Convention's protections against torture and other abuse. But the most chilling aspect of the new law is its deliberate attempt to eliminate the federal courts' role as a check on executive illegality. Congress, in short, has not simply rewritten the law; it has undermined the judiciary's power to interpret it.
Congress returns from recess this month to confront fundamental questions presented by the president's five-year long global "war on terrorism." On the table is nothing less than the future scope of presidential power, with battles looming over military trials, detainee treatment, and domestic surveillance. In the past several months, courts have dealt the administration a series of setbacks on these issues. Undeterred, the president intends to reverse those defeats by asking lawmakers for even greater authority. The ball is now in their court.