AG Mukasey Reasserts Need for Habeas Legislation

In testimony before the House Judiciary Committee today, Attorney General Michael Mukasey repeated a proposal he made earlier in the week for immediate legislation outlining procedures for the habeas hearings of Guantanamo detainees.

Mukasey’s proposal comes in response to the Supreme Court’s recent decision in Boumediene v. Bush, which states that Guantanamo detainees have the right to challenge the legality of their detention in federal court.

The Supreme Court “stopped far short of articulating the procedures that should apply” at those habeas hearings, said Mukasey today. “We need to protect how that [classified] information is used, who has access to it, and who doesn’t.”

The Supreme Court declined to articulate procedures because it didn’t need to. Federal courts have vast experience dealing with and effectively protecting sensitive national security information during criminal trials. In the words of the Supreme Court:

"We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible...These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

Congress cannot start down the path of trying to anticipate and resolve every evidentiary issue that might arise during the habeas proceedings. If it tries to do so, it will significantly constrict the proceedings and thus the ability of the courts to meaningfully assess the lawfulness of the detainees’ continued imprisonment.

“The latest proposal from the Attorney General fits a familiar pattern,” said Elisa Massimino, Washington Director of Human Rights First. “The Supreme Court rules against the Bush Administration’s anti-rule of law agenda and the Administration interprets that as a crisis that Congress must avert. Congress shouldn’t fall for it this time. Mr. Mukasey asserts that the Court left too many questions unanswered, when in reality his complaint is that the Administration doesn’t like the answers the Court gave: that no one is outside the protection our laws provide against runaway Executive power.”