The New York Sun reports:
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.”
Additional note: The Sun has a link to Mukasey’s full remarks. Here is just one of many excerpts that caught my eye:
Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. And Congress should adopt rules that strike a reasonable balance between the detainees’ rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. In other words, Congress should accept the Supreme Court’s explicit invitation to make these proceedings, in a word repeated often in the Boumediene decision, practical — that is, proceedings adapted to the real world we live in, not the ideal world we wish we lived in.
Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict. And they must ensure that court proceedings are not permitted to interfere with the mission of our armed forces. Our soldiers fighting the War on Terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings; affidavits, prepared after battlefield activities have ceased, should be enough.
And military personnel should not be required to risk their lives to create the sort of arrest reports and chain-of-custody reports that are used, under very different circumstances, by ordinary law enforcement officers in the United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives. As one editorialist put it, this is not CSI Kandahar. [emphasis added mine] Federal courts have never treated habeas corpus as demanding full-dress trials, even in ordinary criminal cases, and it would be particularly unwise to do so here given the grave national security concerns I have discussed.
