Mukasey: We need detainee hearing rules

by Aamer Madhani

In the aftermath of the Supreme Court ruling last month that detainees at Guantanamo Bay have a constitutional right to challenge their detention in federal court, Attorney General Michael Mukasey today called on Congress to spell out how the so-called habeas corpus proceedings should be conducted.

Mukasey said the legislation should clearly spell out that the detainees will not be allowed in the United States for their habeas corpus hearings and that detainees who successfully challenge their detention should not be released in the United States.

The attorney general also said that Congress needs to make certain that in affording the Guantanamo detainees their constitutional rights that U.S. national security is not made vulnerable.

"One could say, I suppose, that these questions should be left to the courts to resolve through litigation, but I do not think that is the most prudent course," Mukasey said in a speech at the American Enterprise Institute, a conservative Washington think tank. "Unless Congress acts, the lower federal courts will determine the specific procedural rules that govern themore than 200 cases that are now pending. With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty."

Mukasey's call for legislation comes after the high court ruled 5-4 last month that Guantanamo detainees were denied their constitutional right to challenge their incarceration before a federal judge.

Mukasey expressed concern that the Boumediene v. Bush leaves many questions open that Congress needs to address.

Will a detainee be able to subpoena a soldier to return from combat duty in Afghanistan or Iraq to testify? How will the courts deal with classified information during the proceedings? Can a detainee call on another detainee to testify?

In addition to clarifying that federal courts may not order the government to bring enemy combatants into the United States, Mukasey said Congress should make it clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes.

"I am urging Congress to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way and, as the court itself urged, in a practical way," Mukasey said.

Mukasey expressed optimism that Congress could create legislation quickly, but the attorney general might not want to get his hopes up.

"The Congress must not rush to pass yet another piece of ill conceived legislation," Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, said in a statement. "The Judiciary Committee will continue to address issues related to detainees and will review and consider any proposal from the Administration on these matters. With so little time left in this legislative session and the complexity of these issues, it may be an issue more responsibly addressed in the next Congress with a new President."