Following Boumediene’s Rules

Attorney General Michael Mukasey suggests that national security must remain a prominent concern as legislation is created to adhere to the Supreme Court’s recent decision in the case of Boumediene vs. Bush.

“It is worth stressing that the Boumediene decision is about the process afforded to those we detain in our conflict with al-Qaeda, the Taliban, and associated groups,” said Mukasey, “not about whether we can detain them at all.”

In an address given July 21 at the American Enterprise Institute, Mukasey discussed the need to back the Court’s ruling, which granted habeas corpus rights to detainees at Guantanamo Bay. Yet he firmly noted that many detainees are war criminals, and it is in the America’s best interest that they remain detained.

He later added: “We have every right to prevent them from returning to kill our troops or those fighting with us, and to target innocent civilians.”

Mukasey admitted disappointment with the Supreme Court’s decision. Previously, the Detainee Treatment Act had granted detainees the right to seek review of the condition of their detainment in federal courts.

The Act gave more rights to wartime captives than ever before in U.S. and global history.

However, Mukasey stressed that the Court’s latest decision recognized the dangerous nature of new court proceedings dealing with what Mukasey described as a “totally ruthless enemy.”

“The Supreme Court went out of its way to emphasize that ‘practical considerations and exigent circumstances’ must help define the substance and reach of those habeas corpus decisions,” said Mukasey.

Under that premise, Mukasey outlined six principles to guide future legislation on the habeas corpus trials for the detainees:

• That enemy combatants may not be brought to U.S. soil for trial;
• That trials be conducted in a way that protects our national intelligence;
• That the current military commissions may continue to charge detainees with war crimes;
• That legislation should acknowledge the current state of armed conflict with terrorist groups;
• That sensible procedures be established to prevent duplicative efforts in the court system; and
• That detainees may not challenge their detention under any other litigation.

Since the Court stopped short of actually outlining a policy on court procedures granting habeas corpus rights, Mukasey argued that Congress can and must take the responsibility of creating laws regarding the detainees.

“The Supreme Court left many significant questions open,” said Mukasey, “and it is well within the historic role and competence of congress and the executive branch to attempt to resolve them.”

Without a congressional decision, it would be left to the lower courts to determine the procedures for these new trials. Mukasey fears that inconsistency would mar the more than 200 pending cases for Guantanamo detainees.

Mukasey said legislation guided by his six principles would “provide unprecedented access for enemy combatants to challenge their detention, while at the same time protecting the security or our citizens.”

Ben Giles is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.