“Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution,” he said in remarks delivered before the American Enterprise Institute. “But it is our elected leaders who have the responsibility for making policy choices in the first instance.”
He cautioned that allowing such questions to be answered on an ongoing basis by the courts could create “serious risk of inconsistent rulings and considerable uncertainty.”
Mukasey highlighted three classes of “difficult questions” about habeas corpus cases: handling the transport and release of detainees who successfully challenge their imprisonment, dealing with potentially sensitive national security information in the courtroom, and devising specific rules governing the proceedings.
As part of his remarks, the attorney general issued a set of his own recommendations he hoped to see included in any potential legislation.
Despite acknowledging that the Constitution generally gives courts the power to order the release of a prisoner after a successful habeas corpus appeal, Mukasey advised Congress to prohibit federal courts from authorizing the release of suspected terrorist detainees into the United States. Additionally, he urged Congress to reaffirm the legality of holding anyone found to have supported al Qaeda or associated terrorist groups as an enemy combatant.
In addition, the attorney general recommended that Congress provide a set of rules that would ensure that classified or otherwise sensitive information could be used in court without compromising national security concerns.
“It is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our nation gathers intelligence and what that intelligence is,” he said.
Finally, Mukasey emphasized the need to hold habeas corpus proceedings in ways that would interfere with neither the legal nor military means for combating terrorism, arguing that such hearings should neither hold up existing military tribunals nor burden American soldiers with excessive obligations to domestic courts.
“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,” he said. “As one editorialist put it, this is not ‘CSI: Kandahar.’ ”
Prominent Senate Democrats met Mukasey’s remarks with skepticism. Judiciary Committee Chairman Patrick LeahyPatrick LeahyThe Hill's 12:30 Report Lawmakers talk climate for Earth Day, Science March Poll: Sanders most popular senator in the US MORE (D-Vt.) said in a statement that Mukasey had not told him of his desire for new habeas corpus rules prior to delivering his address.
“Given the Judiciary Committee’s long interest in this subject, it is regrettable that the attorney general neither consulted with nor informed the committee about this request before his speech,” he said.
Leahy promised that the panel would “continue to address issues related to detainees and will review and consider any proposal from the administration on these matters.” He expressed doubt, however, that any new legislation could be passed by the end of the current legislative session.
“The Congress must not rush to pass yet another piece of ill-conceived legislation,” he warned.
Senate Majority Leader Harry ReidHarry ReidDraft House bill ignites new Yucca Mountain fight Week ahead: House to revive Yucca Mountain fight Warren builds her brand with 2020 down the road MORE (D-Nev.) agreed with Leahy, arguing that it would be irresponsible for Congress to draft the kinds of rules demanded by Mukasey too quickly.
“The courts are well-equipped to handle this situation, and there is no danger that any detainee will be released in the meantime,” Reid added.
The Bush administration, meanwhile, stood by Mukasey’s remarks.
“What we believe is that the Supreme Court decision actually raised a lot more questions than it answered, and that’s what the attorney general was trying to talk about today,” said White House press secretary Dana Perino.