Mukasey: Congress has to act on detainees

posted at 9:56 am on November 21, 2008 by Ed Morrissey

Michael Mukasey argues that the habeas corpus requirements for terrorist detainees has created a patchwork of inconsistent decisions in the federal courts, which resulted in the order to release five Gitmo inmates this week.  Unless Congress acts to establish firm guidelines, Mukasey warns in his Wall Street Journal column today, the government will have to choose between blowing crucial intelligence assets in open court or allowing terrorists to jump the immigration line and enter the US.  Mukasey offers three steps to salvage a rational policy for detainees:

First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.

Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review.

We should not be forced to choose between continuing to hold a dangerous detainee and jeopardizing the intelligence sources and methods that Americans have risked their lives to obtain, and which our enemies may then render useless.

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees’ right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.

Devising a legal framework to review our military’s detention decisions is an unprecedented challenge. It should not be left to the courts alone.

As Mukasey notes, the problem isn’t so much the federal judges hearing the cases now as the necessity of them hearing these cases at all.  This problem originated in the Supreme Court’s contention that the civil justice system has any role at all in determining status of non-American prisoners held by the military abroad during a time of war.  After that decision, the Supreme Court essentially punted on rules of evidence, requirements for testimony, and the like, arguing that Congress should address those issues — even though the Supreme Court overturned two tribunal systems Congress had already created, the second of which gave more rights and protections to the detainees than our own men and women get from military justice.

Mukasey professes a grreat faith in Congress to accomplish this task.  In fairness, that’s not in question; Congress has already done it twice.  The question will be whether we can trust the Supreme Court not to throw out a third process for handling terrorist detainees that doesn’t involve releasing them in the nation’s capital.

Attorney General Mukasey suffered a collapse last night, but thankfully appears to be recovering well today.  Be sure to read Andy McCarthy’s tribute to Mukasey at The Corner.  Keep him in your prayers today.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

So it’s still Anthony Kennedy’s world and we’re all just living in it. I know there are legal scholars and SCOTUS-philes who understand Kennedy. But I don’t. Anyone have any informed predictions on what he will do or why he has done what he has so far. I read the opinion in Boumedienne (I forget how to spell it.) It made no sense.

D0WNT0WN on November 21, 2008 at 10:02 AM

Attorney General Mukasey suffered a collapse last night, but thankfully appears to be recovering well today. Be sure to read Andy McCarthy’s tribute to Mukasey at The Corner. Keep him in your prayers today.

Mukasey is a good man. I hope he is OK.

D0WNT0WN on November 21, 2008 at 10:04 AM

Here’s the oral argument in Boumediene v. Bush:
http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/argument/

Scalia seems to explain pretty clearly how ridiculous the position is that Kennedy ended up signing onto and that Mukasey is now struggling with.

D0WNT0WN on November 21, 2008 at 10:07 AM

The White House, with an ample assist from Alberto Gonzalez, broke a system that has worked through times of peace and war and calm and crisis for over 200 years.

Michael Mukasey has made a bad situation much worse and now, as a former judge himself, blames the guys in the black bathrobes for the problems that mess has created. At least get that part right, Ed, because if you can’t everything that you write is so much blather.

Yes, Congress will have to help sort out the mess that your buddies made. There will be a new Congress in a very few weeks. That is the blink of an eye compared to the years that many innocents have been held without hearing or trial amidst a relatively small number of genuinely bad people.

A little perspective and patience is in order. Trying showing some of both of this issue.

sdm on November 21, 2008 at 10:09 AM

Michael Mukasey has made a bad situation much worse and now, as a former judge himself, blames the guys in the black bathrobes for the problems that mess has created. At least get that part right, Ed, because if you can’t everything that you write is so much blather.

sdm on November 21, 2008 at 10:09 AM

Easy there big fella. You can obviously have whatever opinion you want. But I don’t think Ed has ever shown a lack of substance, perspective, or patience. Wherever you come down on this there are no “innocents” involved here.

D0WNT0WN on November 21, 2008 at 10:13 AM

sdm on November 21, 2008 at 10:09 AM

Thanks for the democrat talking blather, troll.

Right_of_Attila on November 21, 2008 at 10:13 AM

years that many innocents have been held without hearing or trial amidst a relatively small number of genuinely bad people.

sdm on November 21, 2008 at 10:09 AM

What a frikkin moron. They were captured in battle. Innocent has never been a question. They were enemy combatants. Just because they weren’t in uniform doesn’t make them less dangerous.

I guess in your opinion most of our enemies are friendly innocent misguided do-gooders. Only a very few are “bad”. Cry me a river dude.

And that “new” Congress you’re dreaming of? It will be the same one that has been screwing everything up for years. Oh there’s going to be a big change coming. You can bet on it. But I wouldn’t start counting your chickens yet. I’ve got a feeling a few million pissed off Chicken-Hawks are about to come home. To Roost.

Guardian on November 21, 2008 at 10:27 AM

At least get that part right, Ed, because if you can’t everything that you write is so much blather.
sdm on November 21, 2008 at 10:09 AM

So, by this rule sdm, if some one does not agree with your “prospective”, all other comments made by you are also blather?

Color me enlightened!

Rovin on November 21, 2008 at 10:36 AM

Since when in our entire history have non-American citizen combatants been charged and tried under US Civil Code for actions committed in battle on a foreign shore?

Yes. POW’s have been indicted under civil and criminal law in the past…for actions and crimes committed AFTER their being placed in POW camps within the United States that were committed outside of the POW camp. An escapee, for example, commits arson with a resultant death of an occupant. This could be adjudicated under local criminal statues.

BUT…8 years into this thing…and we still have a preponderance of our “best” legal minds failing to determine what constitutes an American person, a prisoner of war, and a foreign bandit involved in hostilities toward US forces abroad.

After 20 January…then what? Pardon the lot? Let them enter the United States? Offer them citizenship?

Idiots!

coldwarrior on November 21, 2008 at 10:53 AM

Since Obama wants to close down Gitmo, house them all at SCOTUS. Since absence appears to make the lib SCOTUS judges fonder for these enemy combatants, a little up close and personal might just focus the Court’s attention on their true nature. Indeed, why confine them to jail cells at SCOTUS at all, just give them ankle bracelets to keep them confined to the areas where the Boumedienne Majority work.
Since the SCOTUS majority believes them harmless.

eaglewingz08 on November 21, 2008 at 11:55 AM