• This is a rush transcript from "The Journal Editorial Report," January 9, 2010. This copy may not be in its final form and may be updated.

    PAUL GIGOT, FOX HOST: This week on the "Journal Editorial Report," giving terrorists their day in court, the case against the Detroit bomber and the decision not to hold him as an enemy combatant. Former Attorney General Michael Mukasey is here.

    And top Democrats head for the exit. Two Senate retirements shake up the 2010 mid-terms. Are there more surprises ahead?

    Welcome to the "Journal Editorial Report." I'm Paul Gigot.

    The suspect in the attempted bombing of a Northwest Airlines flight on Christmas Day was arraigned this week in court. Umar Farouk Abdulmutallab was charged with six counts, including attempted murder and trying to use a weapon of mass destruction to kill nearly 300 people.

    Michael Mukasey was the attorney general of the United States from 2007 to 2009. He joins me now.

    Judge Mukasey, welcome.


    GIGOT: You wrote this week that you don't think that Abdulmutallab should have been charged as he was right after he was arrested on criminal charges in normal criminal court. Why not?

    MUKASEY: The principal question is timing not so much where he ultimately wound up, it's secondary. But he should have been taken initially, designated an unlawful enemy combatant or, in the current parlance, an unprivileged....

    GIGOT: Belligerent.

    MUKASEY: ... belligerent...


    GIGOT: That's what they called it, yes. Sounds like a New Yorker.

    MUKASEY: Exactly. And questioned by people who were interested in intent intelligence gathering, because he had a lot of it. He knew who put him on the plane and who had mixed up the stuff that he had in his underpants and he knew who had trained him, radicalized him and so forth. He had a wealth of information. We're never going to hear about that. And we're certainly not going to hear about it in a timely way. And the failure to do that I think was a major, major gaffe.

    GIGOT: The argument though, you hear from the administration said if he was named an enemy combatant, he would have the right under a Supreme Court ruling to have a habeas hearing, and then if he won that habeas hearing, he could be released.

    MUKASEY: A habeas hearing could challenge only the propriety of his confinement. His confinement could be based on the fact that he was dangerous and given the fact that he was apprehended with a bomb in his shorts, I think the hearing on habeas would be short and sweet.

    GIGOT: Your argument is the priority for any administration is for any administration — when you're arresting suspects like this, needs to be on collection of intelligence to protect against the next terrorist attack and not on some kind of adjudication, a conviction, making sure he stays in prison?

    MUKASEY: Correct. Once you've got him in custody you've virtually solved that problem.

    GIGOT: He's going to be, and one way or another, in detention for many, many years.