Mukasey: Bar Guantanamo Detainees From U.S.

Congress should prohibit the federal courts from ordering that any Guantanamo Bay prisoner be released in America or brought into the country for any reason, Attorney General Mukasey said yesterday as he urged the passage of legislation to establish procedures for when such prisoners challenge their detention in federal court.

Mr. Mukasey said action by Congress was needed in the wake of the Supreme Court's 5-4 ruling in June in Boumediene v. Bush that war-on-terror prisoners held at the American base in Cuba have the right to bring habeas corpus cases challenging their detention.

"Unless Congress acts, the lower federal courts will determine the specific procedural rules that govern the more than 200 cases that are now pending," Mr. Mukasey warned an audience gathered at a conservative think tank in the nation's capital, the American Enterprise Institute. "With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty. ... It hardly takes a pessimist to expect that without guidance from Congress, different judges, even on the same court, will disagree about how the difficult questions left open by Boumediene will be answered."

Mr. Mukasey outlined an array of dangers the habeas proceedings could pose, including the possibility that judges might insist on taking live testimony from the prisoners in court. "First and foremost, Congress should make it clear that our federal courts may not order the government to bring enemy combatants into the United States," he said. He also said Congress needs to put controls on classified information to be used in the court cases. "We cannot turn habeas corpus proceedings into a smorgasbord of classified information for our enemies," the attorney general said.

Mr. Mukasey argued that the habeas cases involving prisoners facing war crimes charges before military tribunals should be put on hold. "Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief," he said. "So should enemy combatants. ... The victims of the September 11 terrorist attacks should not have to wait any longer to see those who stand accused face trial."

The first of those trials, a case against a driver for Osama bin Laden, Salim Hamdan, got under way at Guantanamo yesterday after a federal judge in Washington declined to block it.

"There's no need to invent yet another set of legal rules to govern the detention and trial of prisoners held on national security grounds," a lawyer with the American Civil Liberties Union, Jameel Jaffer, said.

Mr. Jaffer said Mr. Mukasey's analogy between traditional criminal cases and the military tribunals was not apt. "The kinds of systemic problems that exist in Guantanamo are different," the ACLU attorney said. "It doesn't make sense to hold trials under a system of trials that is likely to be held unconstitutional later on."

After his speech, Mr. Mukasey brushed aside a reporter's suggestion that Congress might not race to tackle the complex issue during an election year. "The fact that it's an election year, optimistically, should create an even greater incentive to show its talents and act nimbly," the official said.

Early reaction from Capitol Hill was less than receptive. "Attorney General Mukasey's call today for Congress to create new rules for these habeas proceedings is the first I have heard from the Administration on this issue," the Senate Judiciary Committee chairman, Senator Leahy of Vermont, said in a written statement. "It is regrettable that the Attorney General neither consulted with nor informed the Committee about this request before his speech. ... It may be an issue more responsibly addressed in the next Congress with a new President."