Terrorism

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21 July 2008
U.S. Attorney General Urges Congress to Act on Detainee Process

By Bridget Hunter
Staff Writer

Related:
 • U.S. Attorney General Discusses Enemy Combatants in Guantanamo

Washington -- The United States continues to seek a legal process for adjudicating the rights of those detained as illegal combatants that is constitutional, transparent and still addresses national security concerns.

"The responsibility of moving forward now rests with the legislative and executive branches as much as it does with the judiciary," U.S. Attorney General Michael Mukasey told an audience at the American Enterprise Institute for Public Policy Research in Washington July 21.

Mukasey called on Congress to set procedures for the more than 200 cases now pending before individual courts before judges move forward and potentially generate a range of inconsistent, contradictory or confusing rulings.

A June 12 Supreme Court decision upheld the constitutional right (know as habeas corpus) of individuals detained in the U.S. Navy base at Guantanamo B ay, Cuba, to challenge their detention, but the ruling was silent on the procedures for such challenges. (See "Guantanamo Detainees Win Right to Challenge Their Detention.")

As noted by Chief Justice John Roberts, who observes in his dissent that the decision leaves detainees "with only the prospect of further litigation to determine the content of their new habeas right," the Boumediene v. Bush decision rejects the procedures set in a 2006 law but "proposes no alternatives of its own."

Mukasey said that Congress and the executive branch are in the best position to make decisions like these that affect national security because of their expertise in such matters and their ability to weigh the difficult policy choices they pose.

"Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution, but it is our elected leaders who have the responsibility for making policy choices," he said.

MUKASEY’S RECOMMENDATIONS

The attorney general listed principles that he said should guide Congress as it drafts new legislation. Specifically, Congress should:

• Make it clear that no court can order enemy combatants brought into the United States;

• Set procedures that protect U.S. intelligence-gathering operations;

• Not allow habeas proceedings to delay the military tribunal process;

• Explicitly state the United States remains engaged in armed conflict with al-Qaida;

• Assign one federal district court exclusive jurisdiction over habeas proceedings; and

• Stipulate that detainees cannot pursue forms of litigation other than habeas proceedings to challenge their detention.

Mukasey reminded his audience that the Supreme Court decision addressed only the process afforded to those detained in Guantanamo and in no way challenged the United States’ right to hold individuals who have taken up arms against it.

"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 have after their release from Guantanamo. We have every right to prevent them from returning to kill our troops or those fighting with us and [from returning] to target innocent civilians," he said.

Dealing with a large number of non-uniformed combatants fighting independent of official military forces has posed legal challenges never addressed by any other nation or international organization. Drawing on domestic and international military law, the United States created a military commission process to protect the rights of the accused and afford them fair trials.

The U.S. Department of Defense, under the authority of the Military Commissions Act of 2006, set up combatant status review tribunals to review individuals detained at Guantanamo who met the department’s legal definition of "enemy combatant." Detainees are provided with legal counsel for these proceedings if they chose to accept it.

Since 2002, more than 500 detainees have departed Guantanamo for other countries. As of May 2, approximately 270 detainees were being held at Guantanamo.

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