Congress, and not judges, should decide how to give Guantanamo Bay detainees their day in court, the attorney general said Monday in calling for new laws governing how foreign terror suspects seek their release.
It’s doubtful, however, that Congress will approve the legal measures Attorney General Michael Mukasey wants before the end of the election-season year.
A federal court in Washington is currently working on rules for judicial hearings for about 200 suspected al-Qaida and Taliban foot soldiers who charge they’re being illegally held at the prison at the U.S. naval base in Cuba. A Supreme Court ruling last month gave the detainees the right to challenge their capture in U.S. civilian courts.
“With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty,” Mukasey, himself a former federal judge, told an audience at Washington think-tank, the American Enterprise Institute.
Left to the courts to decide, Mukasey said, many of the cases could wind up in appeals that would further delay the hearings. “It hardly takes a pessimist to expect that, without guidance from the Congress, different judges on even the same court will disagree,” he said.
Just a delay tactic, critic says
Critics immediately called Mukasey’s request an attempt to go around the Supreme Court with legislation that also would face lengthy legal challenges. The court’s June 12 ruling said Congress’ earlier efforts to intervene in detainee cases were unconstitutional.
“What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays,” said Vincent Warren, executive director for the Center for Constitutional Rights. The group has helped find lawyers to represent the detainees.
“Congress should be a part of the solution this time by letting the courts do their job,” Warren said.
Mukasey said Justice Department attorneys are hopeful and available to help Congress craft legislation. He said lawmakers should feel spurred, and not delayed, by the election year to pass the laws. Judges have said they want to set rules governing the detainees’ hearings by year’s end.
Among the rules Mukasey is seeking:
- Barring federal courts from allowing the detainees to be brought or released into the United States. He said detainees could participate in the court hearings by video link from Guantanamo if necessary. “Many of them pose an extraordinary threat to Americans,” he said.
- Protecting counterterror intelligence gathered and used to detain the suspects from being turned over to courts.
- Prohibiting detainees charged with war crimes from challenging their capture until after they stand trial. Additionally, detainees should not be allowed to appeal their imprisonment under more than one legal standard.
- Assigning one federal court, and one judge, to oversee the detainee release cases to make sure they are heard in a coordinated effort.
- Underscoring that the United States has the authority to detain suspects it has identified as enemy combatants. “The United States has every right to capture and detain enemy combatants in this conflict, and need not simply release them to return to the battlefield — as indeed some of them have,” Mukasey said.