Legal Commentary

Mukasey Says Military Commission Trials Will Proceed

By Jeralyn

Attorney General Michael Mukasey, speaking in Tokyo today, said the Supreme Court's decision yesterday upholding the rights of detainees to challenge the determination they are enemy combatants will not affect the upcoming Military Commissions Act trials.

[Mukasey] said he was disappointed with the decision because it would lead to "hundreds" of detention cases being referred to federal district court.

"I think it bears emphasis that the court's decision does not concern military commission trials, which will continue to proceed," he said. "Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention."

There are several levels of detainees at Gitmo. Most have been held for years without charges. A small group have been charged with crimes, including offenses punishable by death. Their trials are by military commission, the rules of which are, in my view, unconstitutional.[More...]

The value of yesterday's decision was in its clear statement that after a combatent review board found a detainee to be am "enemy combatant", he has to be able to challenge that designation in a federal court. The Supreme Court agreed that if the review of the board's decision was overturned, the individual is not an enemy combatant, he could have to be ordered release.

The Supreme Court also held that the reviewing federal court can now consider new evidence not presented at the review board hearing.

President Bush is unhappy with the decision and says new laws may be needed to get around the Supreme Court's ruling.

Full post as published by TalkLeft on June 13, 2008 (boomark / email).