Constitutional Law

A.G. Mukasey Urges Congress to Again Intervene Regarding Guantanamo Detainees

In a speech before the conservative think tank the American Enterprise Institute, Attorney General Michael Mukasey urged Congress to enact legislation defining the rights available to Guantanamo detainees who are bringing habeas challenges to their detention following the Supreme Court’s recent decision in Boumediene v. Bush.

In setting forth six principles to guide the legislation, the former federal judge argued that “without guidance from Congress, different judges, even on the same court, will disagree about how the difficult questions left open by Boumediene should be answered.”  The Washington Post explained that under Attorney General Mukasey’s plan, “the U.S. government could hold prisoners indefinitely so long as the armed conflict with al-Qaeda persisted.”

The Center for Constitutional Rights, which organized over 500 lawyers to represent some of the detainees, criticized the Attorney General’s plan as “a shocking attempt to drag us into years of further legal challenges and delays . . . . The Supreme Court explicitly said in Boumediene that the two prior attempts by Congress to intervene to prevent detainees from having access to the courts were unconstitutional.” 

The principles, taken from the Attorney General’s speech, are after the jump.

(1) Congress should make clear that our federal court may not order the government to bring enemy combatants into the United States. . . . [A]lthough the constitution may require generally that a habeas court have authority to order release, no court should be able to order that an alien captured or detained during wartime be admitted and released into the United States.

(2) It is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our nation gathers intelligence and what that intelligence is. . . . We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets and we can do so in a way that is fair to both the government and the detainees alike.

(3) Congress should make clear that habeas proceedings should not delay the Military Commission trials of detainees charged with war crimes. . . . Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials.

(4) Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

(5) Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct the common legal issues be decided by one judge in a coordinative fashion. And Congress should adopt rules that strike a reasonable balance between the detainees' rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. . . . Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict; and they must assure that court proceedings are not permitted to interfere with the mission of our armed forces. In other words, soldiers . . . should not be required to leave the front lines to testify as witnesses in habeas hearings. Affidavits prepared after battlefield activities have ceased should be enough. And, military personnel should not be required . . . to create the sort of arrest reports and chain of custody reports that are used [by] . . . law enforcement officers in the United States.

(6) Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. . . . Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should . . . eliminate . . . litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Full post as published by ACS Blog on July 25, 2008 (boomark / email).