WASHINGTON – Congress, not judges, should decide how to give Guantanamo Bay detainees their day in court, Attorney General Michael Mukasey said Monday in calling for new laws governing how foreign terror suspects seek their release.
It's doubtful, however, that Congress will approve the legislation Mukasey wants before the end of the election-season year. And the chief judge in Washington's federal court said he would not wait for Congress to act.
A federal court in Washington is currently working on rules for judicial hearings for about 200 suspected al-Qaida and Taliban foot soldiers who contend they're being illegally held at the prison at the U.S. naval base in Cuba. A Supreme Court ruling last month gave the detainees the right to challenge their capture in U.S. civilian courts.
"With so many cases, there is a serious risk of inconsistent rulings and considerable uncertainty," Mukasey, himself a former federal judge, told an audience at the American Enterprise Institute, a Washington think-tank.
Left to the courts to decide, Mukasey said, many of the cases could wind up in appeals that would further delay the hearings. "It hardly takes a pessimist to expect that without guidance from the Congress, different judges on even the same court will disagree," he said.
Critics immediately called Mukasey's request an attempt to circumvent the Supreme Court with legislation that also would face lengthy legal challenges. The court's June 12 ruling said Congress' earlier efforts to intervene in detainee cases were unconstitutional.
"What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays," said Vincent Warren, executive director of the Center for Constitutional Rights. The group has helped find lawyers to represent the detainees.
"Congress should be a part of the solution this time by letting the courts do their job," Warren said.
Mukasey said Justice Department attorneys hope to help and are available to assist Congress in crafting legislation. He said lawmakers should feel spurred, and not delayed, by the election year to pass the laws. Judges have said they want to set rules governing the detainees' hearings by year's end.
However, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said the issue may be "more responsibly addressed in the next Congress with a new president." Sen. Russ Feingold, D-Wis., a Judiciary Committee member, called Mukasey's request "an attempt to create an election-year security issue where there isn't one."
Meanwhile, U.S. District Court Chief Judge Royce C. Lamberth in Washington 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."
Among the rules Mukasey is seeking:
— Barring federal courts from allowing the detainees to be brought or released into the United States. He said detainees could participate in the court hearings by video link from Guantanamo if necessary. "Many of them pose an extraordinary threat to Americans," he said.
— Protecting counterterror intelligence gathered and used to detain the suspects from being turned over to courts.
— Prohibiting detainees charged with war crimes from challenging their capture until after they stand trial. Additionally, detainees should not be allowed to appeal their imprisonment under more than one legal standard.
— Assigning one federal court, and one judge, to oversee the detainee release cases to make sure they are heard in a coordinated effort.
— Underscoring that the United States has the authority to detain suspects it has identified as enemy combatants. "The United States has every right to capture and detain enemy combatants in this conflict, and need not simply release them to return to the battlefield — as indeed some of them have," Mukasey said.