I read Judge Mukasey's opinion piece in the WSJ, as per your link. Like many others, especially the very conservative, he is calling for the establishment of a new court system to try people who can't be tried in the current court system because the government doesn't want to follow the rules of evidence, and risk disclosure of things, and wants to use interrogation methods, and,....wants to act outside the law with absolute certainty of conviction.

Sorry, heard it before, even down to some of his details about Congress establishing lesser courts and such... from a protege of John Yoo.

Clear one thing up, please. A bona fide enemy combatant can be detained for the duration of the conflict without charge. That is as it should be, we don't want the charge and trial of soldiers in a conflict for fighting. This is sanctioned by Geneva, and is sanctioned by our laws implementing Geneva, and has never, ever, ever been the problem.

The problem has always really been the government wanting to use a declaration of enemy combatant status as a means of detaining people who aren't bona fide enemy combatants. Which stems from the larger problem of wanting to declare war on terrorism itself or on criminals who commit terrorist acts.

Judge Mukasey is a full supporter of a "special status" for all criminals who the government feels are a threat to our national security. A criminal who is a threat (recall conservatives often add the adjective "existential" here) to our security as a nation. Think, people! An entire nation of 200 years, 300 million people, $15 trillion economy, massive infrastructure and industrial base, is facing an existential threat from a criminal (and not even from within the country much less the government)? Granting the government a special court system outside the protections of the law to be used to try people who need to be found guilty no matter whether or not they've done anything is a radical, not a thoughtful and considered, idea. Oh, and about the other "existential threat", that the trial of a handful of terrorism suspects has brought the federal court system to its knees financially and in operationally -- you have to be kidding.

The test for holding someone as an enemy combatant is very easy. Does the term "Prisoner of War" fit them? First answer that question, then afterward you can argue about whether or not they are legally entitled to all of the Geneva protections or only some of them due to their conduct in displaying or concealing weapons or whatever. But an enemy combatant in custody is some form of prisoner of war. That is why they are not charged with crimes. If you hold someone who is not some form of prisoner of war as a prisoner of war, merely so you won't have to charge and try them, you are abusing the law.

I can't support this guy except holding my nose and convincing myself its the best we can get.

I read Judge Mukasey's opinion piece in the WSJ, as per your link. Like many others, especially the very conservative, he is calling for the establishment of a new court system to try people who can't be tried in the current court system because the government doesn't want to follow the rules of evidence, and risk disclosure of things, and wants to use interrogation methods, and,....wants to act outside the law with absolute certainty of conviction.

Sorry, heard it before, even down to some of his details about Congress establishing lesser courts and such... from a protege of John Yoo.

No. He's calling for this as an alternative to the current system of military commissions (which don't provide enough safeguards) and as an alternative to civilian courts (which, in his view, provide too many). It's the middle ground between the Yoo/Cheney/Addington position of military commissions/Military Commissions Act and those who want them all tried in civilian courts.

I'm against it, but it's not the most extreme position. Neal Katyal, for instance, the Georgetown Professor who represents numerous Guantanamo detainees (and successfully argued Hamdan) advocates the creation of hybrid courts.

Clear one thing up, please. A bona fide enemy combatant can be detained for the duration of the conflict without charge. That is as it should be, we don't want the charge and trial of soldiers in a conflict for fighting. This is sanctioned by Geneva, and is sanctioned by our laws implementing Geneva, and has never, ever, ever been the problem.

The problem has always really been the government wanting to use a declaration of enemy combatant status as a means of detaining people who aren't bona fide enemy combatants. Which stems from the larger problem of wanting to declare war on terrorism itself or on criminals who commit terrorist acts.

The issue is manifold: (1) regardless of what you can or can't do to "enemy combatants," what can you do to U.S. citizens detained on U.S. soil?; (2) if, as you say, it's fine to detain enemy combatants with no process, how do those wrongfully accused secure their release; and (3) even if, as you argue, enemy combatants can traditionally be held without process pending the end of hostilities, what do you do where the "hostilities" are not a finite war but a decades-long one which likely would mean life imprisonment?

But an enemy combatant in custody is some form of prisoner of war. That is why they are not charged with crimes. If you hold someone who is not some form of prisoner of war as a prisoner of war, merely so you won't have to charge and try them, you are abusing the law.

But this begs the question. Is someone who tries to perpetrate terrorist acts inside the U.S. on behalf of Al Qaeda a prisoner of war?

I can't support this guy except holding my nose and convincing myself its the best we can get.

That goes without saying.

Word of advice: When backpedalling away from a bad position, don't back into a worse one. You went from supporting Mukasey because Kristol told you to, to supporting him because it will piss off some person you don't like.

And refuting your authoritarian follower status by emphasizing how Mukasey will continue the policies of a hyper-executive supra-branch of the government has me reeling. "I'm not an authoritarian! Now let's make sure the President is a King."