When Michael Mukasey, a widely respected former federal judge, was nominated by President Bush to succeed Alberto Gonzales as U.S. attorney general, I doubt even his most enthusiastic admirers would have expected him to proclaim, as he did June 4, that the military commissions proceedings at Guantanamo will be “in the best traditions of the American legal system.”


When Michael Mukasey, a widely respected former federal judge, was nominated by President Bush to succeed Alberto Gonzales as U.S. attorney general, I doubt even his most enthusiastic admirers would have expected him to proclaim, as he did June 4, that the military commissions proceedings at Guantanamo will be “in the best traditions of the American legal system.”

On Feb. 14, the Supreme Court of the United States gave Mukasey a failing grade in constitutional law. Mukasey indulged in this fantasy as he spoke at an annual conference of Washington federal judges. I assume that out of respect for this nation’s chief law officer, the audience of judges managed to suppress their guffaws. Now that the Supreme Court declared the military commissions unconstitutional, those judges can laugh aloud.

They all knew that the detainees (Gitmo guards are not allowed to call them prisoners) before the tilted bar of justice there are not allowed to rebut the most crucial evidence against them, which is classified.

Nor are the prisoners permitted to testify about how they’ve been treated at Guantanamo Bay or during previous confinements at such legal black holes as in the CIA’s secret prisons, from which some have been transferred to Guantanamo.

At those dark sites, authorized by George W. Bush in his sovereign extrajudicial authority, the CIA finally admitted that some of their inmates had been waterboarded, including the star defendant before the commissions, Khalid Sheikh Mohammed. When he tried to describe what that experience — and other tortures he had undergone — were like, he was silenced by the military judge.

Other defendants who claim to have been tortured — while being interrogated at Guantanamo’s “Camp Justice,” where the hearings are held — are forbidden from speaking about the conditions of their confinement. There have been detainees who no longer have to appear before these unconstitutional military commissions, designed by administration lawyers with degrees from some of our premier law schools, because these prisoners have committed suicide in their cells out of hopelessness, their lawyers claim.

Guantanamo Bay officials characterize such suicidal resistances to American authority as “asymmetrical acts of war” committed by these enemies of the United States engaged in a terminal public relations assault against us infidels. A recent disclosure further puncturing Mukasey’s attempted idealization of American justice was brought to sharp light in the case of alleged terrorist Canadian Omar Khadr appearing before a military commission. The lead in a June 8 story in the Toronto Star revealed:

“Guantanamo Bay interrogators were directed to destroy (their) handwritten notes (while getting alleged confessions from Khadr) in an attempt to minimize the chances they could have their actions questioned in court.”

Now that he has been rebuked by the Supreme Court, Mukasey might want to take note that “the document confirms for the first time that the Pentagon had a policy that required original (interrogators) notes to be systematically destroyed — something detainee defense lawyers argue undermines their ability to challenged the government’s evidence.” No kidding.

A former Guantanamo Bay prisoner, Adel Hassan Hamad, was caged there for five years until — as the Feb. 6 Christian Science Monitor reported — interrogators reached “the conclusion that (Hamad) was exactly who he claimed to be: a hospital administrator in Pakistan. On Dec. 11, 2007, they put him back on a cargo plane, hooded and handcuffed, and sent him back to his home in Sudan.”

Hooded, handcuffed and innocent, Mr. Attorney General. Hamad, writes reporter Scott Baldauf, is suing the United States government “for compensation for those lost years — years where his family became impoverished and one daughter became sick and died.” Fida was 3 when she died in 2005.

The lawsuit is not only what Hamad wanted from the United States: “We must want to respect America again. The American conscience and the American people need to return to the great concepts established by the Founding Fathers, of freedom, democracy, equality and justice. All these values and even the justice system are being shaken, played with.” (These are Hamad’s words in English, learned from his prison guards.)

How is it that Mukasey became a very high-level player with the American justice system after a long career exemplifying it as a federal judge? My answer: The culture of the Bush administration is contagious.

Now, with Mukasey also insisting that major telecommunications systems should get immunity for breaking the law by helping the government eavesdrop without warrants on our phone calls and e-mails, this man who earned the esteem of both defense lawyers and prosecutors appearing before him in a federal courtroom has become a parody of America’s chief law officer.

Mukasey could be a figure of fun on a more sophisticated national TV show than Jay Leno’s. If there comes to be a President John McCain, will he continue the Bush legacy of American justice by retaining Mukasey as attorney general? Maybe, because McCain disagrees with the majority of the Supreme Court decision — that there was NO law at Guantanamo.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.