A Constitutional Reach-Around

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Published on Thursday, 24 July 2008

Written by Chris Anders, ACLU

Lame-Duck Attorney General Wants New Declaration of War -- and Takes Aim at the Constitution

Maybe we should get Attorney General Michael Mukasey a couple of countdown calendars. If he had checked the calendar yesterday before heading out to give a speech at the American Enterprise Institute, he would have realized that there were only 182 days left of the Bush Administration and roughly five weeks left in the congressional calendar (which translates to about 20 days on Capitol Hill).

The problem for Mukasey is that no one is lining up behind someone who will be in forced retirement in a little more than six months. And certainly Congress isn't going to drop everything and follow Mukasey's crazily ambitious proposal for Congress to both declare a new war and gut habeas corpus protections.

Mukasey offered a multi-part plan to violate the Constitution. He demanded that Congress declare a new "armed conflict" (which is Bush-speak for a new declaration of war) that would give a president worldwide power to declare anyone a terrorist and hold the person forever -- without ever charging anyone with a crime. Mukasey also asked Congress to enact the Bush Administration's scheme for undermining the recent Supreme Court decision restoring constitutional habeas corpus protections to the detainees at Guantanamo. The main goal of the proposed new Bush rules restricting habeas rights is to try to block federal judges from ever learning the truth about the deliberate and widespread use of torture and abuse inflicted on detainees. Judges would not be allowed to see evidence of torture and abuse and would instead simply have to trust that a president is holding the right people as terrorists.

That is far more power than any president should have. No president should be able to simply declare someone picked up anywhere in the world (including in the United States itself) to be a terrorist or associated with a terrorist, imprison the person forever without charge based on the determination of a president alone and then hide from courts the evidence being used to hold the person -- even if it was beaten out of a witness. The Supreme Court has already said no four times to past Bush Administration schemes to violate the law in holding detainees. Mukasey is looking for slap-down number five.

The only good news in all of this is that not only is there almost no time left in this Congress to pass this sweeping violation of the Constitution, but the House and Senate Judiciary Committees are hostile committees for this scheme. Senate Judiciary Committee Chairman Patrick Leahy politely, but firmly, told the Bush Administration yesterday that he is not pulling his committee into another Bush plan to violate the Constitution (and the Ranking Republican on the Senate Judiciary Committee, Arlen Specter, has spent years working with Chairman Leahy to try to restore the very habeas protections that Mukasey wants to gut). Meanwhile, in the House of Representatives, House Judiciary Committee Chairman John Conyers has been leading a year-long probe into whether high-level Bush Administration officials committed or authorized crimes of torture and abuse -- and he has repeatedly demanded that Mukasey appoint an independent prosecutor to investigate any torture crimes ordered at the top levels of government. Conyers is certainly not going to have his committee be complicit in the latest Bush Administration plan to cover-up torture and abuse crimes.

As the clock ticks down, there certainly is a lot of work for Congress to do. But the work is in repairing the damage done to the Constitution over the past seven years, not in causing more harm.

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