Effectiveness: Low. Constitutionality: Dubious. Terrorist Propaganda Value: Priceless. Posted by Heather Hurlburt

Last week, District Court Judge James Robertson seemed to tell all sides pretty firmly to stay out of the military tribunals process – let the military courts do their work and then let the civilian appeals process determine whether in fact the Administration has created a system that meets constitutional standards.

That sounds like something conservatives ought to be able to live with.

Now, it seems the Administration, with Attorney General Michael (“I can’t say if waterboarding is torture”) Mukasey leading the way, has gone all activist in the Washington heat.  Today Mukasey called on Congress to write new rules on procedures for detainees to challenge the legitimacy of their detention under the habeas principle – the only right the Founding Fathers thought was so crucial that they included it in the body of the Constitution rather than as an amendment.

**update:  The good lawyers of SCOTUSblog have a rundown of Mukasey's proposals and some key responses here.

Let’s just review:

Number of Administration attempts to rewrite habeas that have withstood challenge in court:  0

Number of individuals convicted by the military tribunals:  1

Number of those individuals who are still in custody:  0

Propaganda value to extremist groups of the ineffective, stuttering military tribunal system:  priceless.  Retired Admiral and Navy Counsel Alberto Mora contends that “the first and second identifiable causes of U.S. combat deaths in Iraq… as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively, the symbols of Abu Ghraib and Guantanamo.” 

Number of individuals convicted of terrorism by our civilian courts over the same time period:  dozens, including “American Taliban” John Walker Lindh and 9-11 plotter Zacharias Moussaoui, neither of whom will be walking free anytime soon.

Rumor has it the Administration is thinking about putting forward more legislation on the tribunals this fall.  One hopes they’ll think better of it.  May I suggest three modest principles on which this and all subsequent proposals should be judged:

1.       Does it work?  Any tribunal system faces a hard burden of proof to show that it can work better than our civilian court system, which – contrary to the assertions of non-experts – has tried dozens of terror suspects without releases of classified information.  Reason you haven’t heard about important terrorists walking free, or key strategies being disclosed to our enemies?  None have been.

2.       Does it follow American norms and values, and can the world see that it does?  As Admiral Mora says, our security as well as the core of who we are as Americans has been undermined by the sorry record of the detention system.  That can be fixed, but it has to be fixed with actions, not obfuscations.

3.       Does the proposed fix simplify or complicate?  The courts have indicated that they will come back to the tribunals after Hamdan and others have been tried under the current system and rule on their constitutionality.  If the Administration is sincere about wanting a streamlined, effective and constitutional process, won’t it wait and work with our court system, not against it?

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