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Mukasey: Curb courts’ powers on detainees

UPDATE 3:10 p.m.  The Attorney General’s proposals drew three prompt responses. Chief Judge Royce C. Lambert of U.S. District Court, where the habeas cases are now, said in a statement that guidance from Congress was “always welcome,” but said that his Court was “on a fast track” so guidance would be better sooner rather than later. Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, issued a statement scolding the Attorney General for not consulting with or telling the Committee about his ideas before the speech, and said “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.” Similarly, the Senate Majority Leader, Democrat Harry Reid of Nevada, said in a statement that it would take time “to get this right” and added: “It is hard to imagine that Congress can give this complex issue the attention it deserves in the closing weeks of this legislative session.”  The courts, he said, “are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.”


Reacting to the Supreme Court’s latest ruling on detainees’ rights, Attorney General Michael B. Mukasey on Monday urged Congress to take control of the captives’ court challenges and strictly limit judicial options. In a six-point plan of proposed legislation, the government’s highest legal officer said “the responsibility of moving forward rests with the Legislative and Executive Branches as much as it does with the judiciary.”

Mukasey, in remarks delivered at a midday forum at the American Enterprise Institute, a conservative think tank in Washington, made clear that the Bush Administration is opposed to allowing the detainees’ habeas challenges to play out in the courts alone.  He said that the Supreme Court, in its June 12 ruling in Boumediene v. Bush (06-1195), had “left many significant questions open, and it is well within the historic role and competence of Congress and the Executive Branch to attempt to resolve them.”

With the Democrats now in control of Congress, and with only six months left in the Bush Administration’s tenure, the chances of a broad new legislative package on detainees becoming law appears to be less than predictable.  When Congress in 2005 and 2006 passed new laws seeking to curb detainees’ rights, Congress was under Republican control.

The Mukasey plan of legislation, clearly based on fears about what the courts might do with the habeas cases filed by more than 200 detainees, involves these key points, in summary:

** Congress would bar the courts from ordering that any detainee be released into the U.S., or brought into the U.S. for legal proceedings.

** A new law should strictly curb any access by detainees (and perhaps their lawyers) to classified intelligence information about the captives.

** The proposed law should forbid the courts from reviewing any habeas challenge by a detainee facing war crimes trial, until any such trial was over.

** The measure should reaffirm the government’s power to hold foreign nationals as detainees as long as the “War on Terror” continues.

** Congress should require that only one District Court judge have exclusive authority over all detainee challenges, deciding “common legal issues…in a coordinated fashion.”

** A new law should restrict detainees solely to habeas challenges, repealing the power given in 2005 to the D.C. Circuit Court to conduct civilian review of military detention decisions.  No other legal options but habeas should remain, under the plan.

The Attorney General, of course, did not suggest that Congress could stop the habeas proceedings now underway in reaction to the Court’s Boumediene decision. That ruling found a constitutional right to pursue habeas, and only a constitutional amendment could undo that part of the ruling; a new statute could not do so.

But the proposals reflected a judgment by Mukasey and his aides that Congress retains broad power to shape the use of that judicial authority.

In deciding the Boumediene litigation, the Court did acknowledge that a number of questions remained about the scope of habeas rights under the Constitution, but it appeared to expect that answers to those questions are, as it put it, “within the expertise and competence of the District Court to address in the first instance.”

The Attorney General, however, clearly suggested that providing answers was, at a minimum, to be a shared enterprise between the courts, the White House and Congress. And he treated the key questions he discussed as “policy choices in the first instance,” not legal questions. He said it was not “the most prudent course” to leave the questions to be answered in the courts, by litigation.

Among his half-dozen specific suggestions, Mukasey said the “most important” was a ban on any court order that a detainee should be brought into the U.S. to appear in any habeas proceeding.  “To the extent detainees need to participate personally,” he suggested, “technology should enable them to do by video link from Guantanamo Bay, which is both remote and safe.”

Even “more critically,” he added, “no court should be able to order than an alien captured and detained abroad during wartime be admitted and released into the United States.” He made this point, he said, while acknowledging that “the Constitution may require generally that a habeas court have the authority to order release.”  The Supreme Court in Boumediene did say that release — at least release under conditions — had to be an option in habeas.

Release, even a conditional release, would seem to be an option in the court cases only if the court first ruled that a detainee was being held illegally.  Mukasey’s proposal was that, in that event, there still should be no entry into the U.S.

The Attorney General, aside from being concerned about security problems, appeared to be troubled at the prospect of differing habeas rulings by different District Court judges.  “With so many cases,” he said, “there is a serious risk of inconsistent rulings and considerable uncertainty.”  Congress, he said, needed to provide guidance to prevent that from happening.  He spoke disapprovingly of another trip to the Supreme Court, saying that would be an intervention once again.  (Four times, the Court has ruled against Bush Administration or Bush-plus-Congress initiatives on terrorism, and twice it has struck down acts of Congress.)

Some of the Attorney General’s ideas are being pursued by the Justice Department’s lawyers in the habeas cases themselves.  For example, the Department has proposed that one judge decide common legal issues in the cases, and has promoted close coordination of the decisions in the cases. It also is resisting efforts by detainees’ lawyers to get access, at least for the lawyers, to classified information about their clients.

The Department’s attorneys have also advanced narrow interpretations of the Boumediene ruling, to try to limit the scope of habeas review.

The Attorney General seemed determined, though, to ensure that the Department’s views prevailed in court, by getting them mandated by Congress.

(NOTE: The Attorney General answered questions following his remarks. Here is a transcript of those exchanges, provided by the Justice Department.)