Mukasey: Congress has to act on detainees

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.