Mukasey Urges Legislation For Guantanamo Trials

Attorney General Michael Mukasey says he wants Congress, not judges, to make policy on how Guantanamo detainees may challenge their detention. The U.S. Supreme Court has ruled against the Bush administration three times in cases related to processing Guantanamo detainees.

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So far, only 20 prisoners at Guantanamo have been charged with crimes, including Hamdan. About 250 of the detainees have not been charged. And the Supreme Court recently said that they can challenge their detention in U.S. courts. Attorney General Michael Mukasey says he wants Congress to set the rules for those hearings, as NPR's Ari Shapiro reports.

ARI SHAPIRO: So far, the Bush administration has not been terribly successful when it's tried to set the rules for processing Guantanamo detainees. The White House has gone to the Supreme Court on this issue three times, and lost three times - most recently, last month.

And as a result of that ruling, 200 Guantanamo cases are now before the Federal District Court in Washington, D.C. They're all habeas corpus proceedings, claims by detainees who say they're being wrongfully held. A judge overseeing the cases has already started to decide how those hearings will deal with questions about evidence, testimony and security.

Yesterday, Attorney General Michael Mukasey said good job.

Attorney General MICHAEL MUKASEY (United States Department of Justice): I believe that court should be commended.

SHAPIRO: But no thank you.

Atty. Gen. MUKASEY: With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty.

SHAPIRO: The answer?

Atty. Gen. MUKASEY: Congress and the executive branch are affirmatively charged by our Constitution with protecting national security, are expert in such matters and are in the best position to weigh the difficult policy choices that are posed by these issues.

SHAPIRO: In other words, Mukasey argued, judges should take a step back and let Congress take control. In a speech at the American Enterprise Institute, he laid out the Bush administration's preferred rules for these hearings. For example, detainees should only be able to testify via video conference from Guantanamo, not live in the courtroom, stateside. They should not be able to call American troops as witnesses.

A detainee who's charged with a war crime should not be able to challenge his detention until the war crimes trial is over, and Mukasey said one judge should decide all of the legal issues that the cases have in common.

Some of these rules have already been adopted by the judges handling the case, but Attorney General Mukasey wants Congress to wrap them all up in a law and send them to the president - soon.

Atty. Gen. MUKASEY: Congress has talented legislators. They have talented staffs. We have quite a body of talent at the Department of Justice that's going to help them. Together, I'm sure we can craft legislation.

Mr. VINCENT WARREN (Executive Director, Center for Constitutional Rights): This is complete deja vu.

SHAPIRO: Vincent Warren is executive director of the Center for Constitutional Rights, the group that's organized the Guantanamo defense team. He says every time the Supreme Court has ruled against the White House on Guantanamo, the administration has asked Congress to pass a law.

Mr. WARREN: The Detainee Treatment Act, the Military Commissions Act and this are all attempts to side-step the Court's very clear rulings and to delay the process as long as possible until they figure out how they want to get themselves out of this mess. And the time for accountability has come.

SHAPIRO: But there's a major difference between then and now. When Congress passed those other two laws, Republicans were in control. Now it's the Democrats.

Vermont Democrat Patrick Leahy chairs the Senate Judiciary Committee, which would be key to passing this kind of bill.

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): I think the attorney general should have been more realistic.

SHAPIRO: He said the administration didn't give him any advance warning that this proposal was coming. And when I asked whether he could envision Congress writing and passing such a bill before the presidential election, Leahy said…

Sen. LEAHY: No, no. I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed.

SHAPIRO: Democrats on the House side expressed similar feelings yesterday. And in a third branch of government, Chief Judge Royce Lamberth of the Federal District Court in Washington put out a statement after Mukasey's speech. His court's handling all of the Guantanamo habeas petitions. Lamberth said guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner rather than later would certainly be most helpful. Ari Shapiro, NPR News, Washington.

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Mukasey Urges Congress To Create Detainee Rules

Attorney General Michael Mukasey on Monday called on Congress to set the rules by which Guantanamo detainees will challenge their detention in civilian courts.

In a speech to the American Enterprise Institute, Mukasey said the recent Supreme Court ruling granting detainees court access, "left many significant questions open." He argued that those questions are best answered by lawmakers, not judges.

"Today, I am urging Congress to act," Mukasey said. "Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution, but it is our elected leaders who have the responsibility for making policy choices in the first instance."

He urged lawmakers to set up the rules for some 200 habeas corpus petitions that are currently pending before the U.S. District Court in Washington. Those are petitions by Guantanamo detainees who say they are being wrongfully imprisoned. Mukasey said these hearings raise significant national security concerns.

Mukasey said lawmakers should, for example, establish rules for handling classified evidence against detainees.

"For the sake of national security, we cannot turn habeas corpus proceedings into a smorgasbord of classified information for our enemies," he said.

Mukasey also asked Congress to dictate that courts cannot order a detainee to be released into the United States. He said detainees should only be allowed to testify at their hearings via video link from Guantanamo Bay, and he said detainees should not be able to call American troops to testify as witnesses.

Mukasey is "calling on Congress to essentially not let the courts do their jobs," said Vincent Warren, executive director of the Center for Constitutional Rights, which represents Guantanamo detainees.

Warren argues that judges can resolve all of the issues Mukasey mentioned in his speech. In some cases, Warren says, they already have. For example, Mukasey said all of the habeas corpus petitions should be heard in one district court. The petitions have already been consolidated before the federal district court in Washington.

Sen. Patrick Leahy (D-VT), who chairs the Senate Judiciary Committee, says the White House did not consult with the committee on the speech or notify them that Mukasey would be making this announcement. Leahy said he doubts that Congress can pass such a law during an election year in the final months of the Bush administration.

"I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed," Leahy told NPR in a phone interview.

Mukasey was more optimistic. In answer to a question after his speech, he said, "Congress has talented legislators," adding "Together, I'm sure we can craft legislation."

The chief judge for the court handling these hearings is Royce Lamberth. Lamberth said guidance from Congress is always welcome. "Because we are on a fast track, however, such guidance sooner rather than later would certainly be most helpful," Lamberth said.

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