By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
Attorney General Michael Mukasey, the former much-lauded chief judge of the U.S. District Court for the Southern District of New York, is increasingly morphing into a replica, in key respects, of his embarrassing predecessor, Alberto Gonzales—a loyal enabler of George W. Bush's disdain for the Constitution's separation of powers, as well as the Bill of Rights.
Gonzales once testified before Congress that in the Constitution, there is no guaranteed individual right of habeas corpus. If that were even remotely true, huge numbers of law-school textbooks would have to be revised.
Now, during a March 14 speech at the London School of Economics, his successor Mukasey stated that the long-delayed trials of Guantánamo prisoners—six of them to start this year—will have "all the protections [for the defendants] we regard as fundamental." But he neglected to mention one glaring, discordant fact: that Colonel Morris D. Davis, the former chief prosecutor for the Office of Military Commissions, which will be conducting these trials, resigned in protest over their lack of credibility last October.
"I resigned on that day," he wrote in a Los Angeles Times op-ed piece in December 2007, "because I felt the system had become deeply politicized and . . . I could no longer do my job effectively or responsibly." And in February of this year, Brigadier General Thomas Hartmann, the legal adviser for these military commissions, refused to rule out the use of "evidence" that had been obtained by waterboarding—which nearly everyone but Mukasey defines as torture.
Despite these developments, our attorney general insisted in his London speech that once the trials start, "the world will see not only the crimes of Al Qaeda put on display, but also a justice system fully consistent with our shared Anglo-American legal tradition as well as the standards of international law."
The world, including our delighted enemies, will also see Colonel Davis—who was, it bears repeating, the former chief prosecutor at Guantánamo—appearing as a witness for one of the defendants, Salim Ahmed Hamdan, purportedly a former driver for Osama bin Laden. Colonel Davis will testify that the charges against Hamdan must be dismissed because of highly improper interference by the Pentagon in the very same legal process so celebrated by Michael Mukasey.
In a startlingly candid—and indeed courageous—statement to The Nation (March 10), Colonel Davis related that while he was still chief prosecutor, he told Defense Department general counsel William Haynes that the forthcoming trials could conceivably produce some acquittals. Haynes's response, according to Davis: "Wait a minute, we can't have acquittals. If we've been holding these guys so long [without charges], how can we explain letting them get off? . . . We've got to have convictions!"
What especially brought back for me Alberto Gonzales and his disingenuous tenure at the Justice Department was reading Mukasey's assurances to his London audience that the fairness of the Guantánamo trials would "exceed those used at Nuremberg."
The leader of the United States prosecution team at Nuremberg was Supreme Court Justice Robert Jackson, for whom due process had the force of religion. What he and the rest of that international court provided those Nazi monsters, and the world at large, was a historic model of how a thoroughly fair trial must be conducted, even for the most notorious defendants.
The specifics of the due process guaranteed to Hitler's mass murderers are detailed at length in Letters From Nuremberg: My Father's Narrative of a Quest for Justice (Crown). In it, Connecticut Senator Christopher Dodd reprints the letters that his father, Thomas Dodd, the no. 2 American prosecutor at Nuremberg, sent to his wife, including the following passage: "Those of us who were privileged to serve at the Nuremberg trial are proud of the entire proceeding. . . . Every right of the defendants was scrupulously observed. They were given every possible opportunity to make every explanation and every possible defense.
"Witnesses were obtained for them merely at their request. Documents were made available, library facilities were at their disposal, and throughout every hour of the trial they were afforded every opportunity to answer every charge."
Unlike the Guantánamo detainees, these defendants had civilian lawyers who were not commanded to hand over the notes of private conversations with their clients to their captors. And those lawyers could cross-examine every witness against their clients, none of whom were giving evidence obtained through "coercion" (a/k/a torture). Nor was there hearsay testimony or secret witnesses, as is the case at Guantánamo.
There were no video cameras at the time of Nuremberg, but had there been, both Jackson and Dodd would have angrily rejected what has been revealed of the practices at Guantánamo since 2002—as recently disclosed and documented by New Jersey's Seton Hall Law Center for Politics and Research in the report "Captured on Tape: Interrogation and Videotaping of Detainees in Guantánamo."
During the past six years, there have been over 24,000 interrogations of the Guantánamo prisoners, and every one of them was videotaped. Given that the CIA has already acknowledged destroying two of its interrogation tapes, it's important to learn how many of these videotapes have since been destroyed to eliminate evidence of the "coercive" interrogations that were used to extract "evidence" for the preliminary hearings and eventual trials. The Seton Hall report does cite, among others, "one government report [of] detainee treatment so violent as to shake the camera in the interrogation room [and] cause severe internal injury" to the prisoner. Perhaps Attorney General Mukasey should look into this question himself.