Attorney General Michael Mukasey on Monday called on Congress to set the rules by which Guantanamo detainees will challenge their detention in civilian courts.
In a speech to the American Enterprise Institute, Mukasey said the recent Supreme Court ruling granting detainees court access, "left many significant questions open." He argued that those questions are best answered by lawmakers, not judges.
"Today, I am urging Congress to act," Mukasey said. "Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution, but it is our elected leaders who have the responsibility for making policy choices in the first instance."
He urged lawmakers to set up the rules for some 200 habeas corpus petitions that are currently pending before the U.S. District Court in Washington. Those are petitions by Guantanamo detainees who say they are being wrongfully imprisoned. Mukasey said these hearings raise significant national security concerns.
Mukasey said lawmakers should, for example, establish rules for handling classified evidence against detainees.
"For the sake of national security, we cannot turn habeas corpus proceedings into a smorgasbord of classified information for our enemies," he said.
Mukasey also asked Congress to dictate that courts cannot order a detainee to be released into the United States. He said detainees should only be allowed to testify at their hearings via video link from Guantanamo Bay, and he said detainees should not be able to call American troops to testify as witnesses.
Mukasey is "calling on Congress to essentially not let the courts do their jobs," said Vincent Warren, executive director of the Center for Constitutional Rights, which represents Guantanamo detainees.
Warren argues that judges can resolve all of the issues Mukasey mentioned in his speech. In some cases, Warren says, they already have. For example, Mukasey said all of the habeas corpus petitions should be heard in one district court. The petitions have already been consolidated before the federal district court in Washington.
Sen. Patrick Leahy (D-VT), who chairs the Senate Judiciary Committee, says the White House did not consult with the committee on the speech or notify them that Mukasey would be making this announcement. Leahy said he doubts that Congress can pass such a law during an election year in the final months of the Bush administration.
"I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed," Leahy told NPR in a phone interview.
Mukasey was more optimistic. In answer to a question after his speech, he said, "Congress has talented legislators," adding "Together, I'm sure we can craft legislation."
The chief judge for the court handling these hearings is Royce Lamberth. Lamberth said guidance from Congress is always welcome. "Because we are on a fast track, however, such guidance sooner rather than later would certainly be most helpful," Lamberth said.