Attorney General Michael Mukasey on Monday called on Congress to craft legislation that would dictate the form of Guantanamo Bay cases in federal court, setting ground rules for evidence, the extent to which detainees may participate in the proceedings and the judiciary's authority to order their release.
There are roughly 200 Guantanamo Bay cases pending in the U.S. District Court for the District of Columbia, following the Supreme Court's June decision granting detainees the right to challenge their captivity. The high court's decision in Boumediene v. Bush stressed a quick resolution for the detainees, some of whom have been held there for more than six years, but it gave the federal district court virtually no guidance as to how the cases should proceed. Mukasey, speaking at the American Enterprise Institute, said the executive and the legislative branches were better equipped to fill in the blanks than the judiciary.
Mukasey said the legislation should include a statement of the executive's right to detain, indefinitely, "those who have engaged in hostilities or purposefully supported al-Qaida, the Taliban, and associated organization." The Bush administration has long asserted this right, but its foundation has been buffeted by one legal challenge after the next. "It would do all of us good to have that principle reaffirmed," Mukasey said.
Mukasey said Congress should bar federal judges from ordering the release of detainees into the United States, even if they prevail in their habeas cases. And in the context of the court proceedings, the judges should not be permitted to order the government to bring detainees into the United States to participate, Mukasey said, adding that a video link would be "remote and safe."
Nor should soldiers be required "to leave the front lines" to testify as witnesses or to create arrest reports on the battlefield, like law enforcement officers in the United States, with later court hearings in mind, he said. "Affidavits, prepared after battlefield activities have ceased, should be enough," Mukasey said.
Mukasey said the habeas proceedings should not delay the trials of detainees charged with war crimes at the naval base. So far, 19 detainees have been charged in the military commissions. The first trial -- involving Salim Hamdan, who is often referred to as Osama Bin Laden's former driver -- began Monday. Last week, both a federal judge and a military judge refused to halt it so Hamdan could challenge the legality of the military commissions.
Mukasey also urged Congress to restrict discovery in the habeas proceedings, giving deference to the government's interest in guarding national security secrets. The U.S. Court of Appeals for the D.C. Circuit is considering a case that could determine what kinds of evidence the government may withhold from detainees and their lawyers.
The legislation should also include a provision that gives the U.S. District Court for the District of Columbia exclusive jurisdiction to hear Guantanamo habeas cases, he said, and it should require a coordinating judge on the court to handle all the common issues. Most of the 200 cases in the court have been shifted to the care of Senior U.S. District Judge Thomas Hogan, who was appointed coordinating judge by a majority of the active judges. Still, Judge Richard Leon and Judge Emmett Sullivan opted out of the coordination.
Chief Judge Royce Lamberth, who took over for Hogan as chief judge in May, has pledged to drive the cases through the court as quickly as possible. In a statement Monday, Lamberth said that "guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful."
The Center for Constitutional Rights, which represents several detainees, accused Mukasey of using the legislation as a delay tactic. "For six and a half years, Congress and the Bush administration have done their level best to prevent the courts from reviewing the legality of the detention of the men in Guantanamo," Vincent Warren, the group's executive director, said in a statement. "Congress should be a part of the solution this time by letting the courts do their job."
Mukasey said Congress and the executive branch are "affirmatively charged by our Constitution with protecting national security, are expert in such matters, and are in the best position to weigh the difficult policy choices that are posed by these issues.
"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 in the first instance."
First reported in The BLT: The Blog of Legal Times