Congress Must Act to Protect U.S. National Security and Rights of Detainees

 

 

WASHINGTON, July 22, 2008--Congress must enact legislation to implement the Supreme Court's recent decision to uphold Guantanamo Bay detainees' constitutional right to habeas corpus, Attorney General Michael Mukasey said in a speech at AEI yesterday. The justices' 5-4 decision last month in Boumediene v. Bush left many "practical concerns" for Congress and the executive branch to address. There is now a "pressing need" for legislation governing habeas trials, said Mukasey, as the first war crimes trial of a detainee--Osama bin Laden's driver, Salim Hamdan--started yesterday.

Attorney General Michael Mukasey / Peter Holden Photography

Mukasey emphasized that any discussion regarding detainment should focus on the legal process, not on the legality of detainment itself. The United States has "every right to capture and detain" those who threaten its national security "and need not simply release them." The differences between nonstate terrorists and the traditional enemies that original laws of war governed "do not make it any less important or any less fair for us to detain those who take up arms against us," Mukasey said. He expressed disappointment in the Supreme Court's decision to allow enemy combatants in custody to appeal their detainment to federal courts, but he said we must move forward to answer the "many significant questions" still left to address, including whether a federal court will be able to order the release of a detainee into the United States, how to protect classified information during court proceedings, and what procedural rules will govern the trials.

 

Habeas proceedings are not criminal trials, Mukasey reiterated. Enemy combatants in custody at Guantanamo were captured during armed conflict, and those who believe that detainees should be charged with crimes or released "seriously misunderstand" the purpose of detainment, which is "self-protection," Mukasey said. With more than two hundred Guantanamo habeas cases pending, immediate congressional action is essential. Before Boumediene, "no alien enemy combatant detained outside the United States had ever before received the right to habeas corpus," and it is "well within the historical role" of the legislative and executive branches to resolve these issues and make necessary "policy choices." Our elected leaders are responsible for U.S. national security, Mukasey said, and must establish a framework for federal courts that ensures the protection of Americans as well as the rights of detainees.

Mukasey outlined six principles "well-established in existing law" that Congress should incorporate in new legislation:

• Make clear that federal courts cannot order the U.S. government to bring detainees into the United States--video link from Guantanamo Bay is sufficient, remote, and safe--and that no court can order the release of a detainee into the United States.
• Ensure protection of classified information and national security secrets in a way that is fair to the U.S. government and detainees.
• Reaffirm that, as for conventional American prisoners, habeas review must await the outcome of trials, of which there are twenty pending for Guantanamo inmates over war crimes.
• Reacknowledge explicitly that the United States is engaged in a conflict with terrorist organizations dedicated to killing American soldiers and civilians and reaffirm that the U.S. government has the right to detain enemy combatants for the duration of hostilities.
• Establish sensible procedures, such as giving one district court exclusive jurisdiction over habeas trials and not requiring U.S. soldiers to return from war zones to testify.
• Ensure that detainees are not able to pursue parallel litigation to challenge their detention other than the habeas corpus right recognized by Boumediene.

Following the terrorist attacks of September 11, 2001, Congress moved quickly to pass the Homeland Security Act of 2002, proving that when necessary it can act "nimbly." In the Boumediene decision last month, the Supreme Court "said explicitly . . . that it was not deciding questions relating to how . . . habeas corpus proceedings must be conducted." Mukasey said that Congress needs to pass legislation in time to address Boumediene's unanswered questions and help the judicial branch adjudicate pending habeas trials.

--CHRISTY HALL ROBINSON

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For media inquiries, contact Véronique Rodman at 202.862.4870 or vrodman@aei.org.

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