Protecting National Security and Detainees' Rights
AEI Newsletter

Attorney General Michael B. Mukasey
Attorney General
Michael B. Mukasey

Congress must enact legislation to clarify the Supreme Court's recent decision on Guantanamo Bay detainees' constitutional right to habeas corpus, Attorney General Michael B. Mukasey said in a speech at AEI on July 21. The justices' 5-4 decision in June in Boumediene v. Bush left many "practical concerns" for Congress and the executive branch to address. There is now a "pressing need" for legislation governing habeas trials, he added.

The United States has "every right to capture and detain" those who threaten its national security "and need not simply release them," Attorney General Mukasey said. He expressed disappointment in the Court's decision to allow enemy combatants in custody to appeal their detention to federal courts, but he said Congress must move forward to address the "many significant questions" remaining, including whether a federal court will be able to order the release of a detainee into the United States, how to protect classified information during court proceedings, and what procedural rules will govern the trials.

Habeas proceedings are not criminal trials, Attorney General Mukasey emphasized. Enemy combatants in custody at Guantanamo were captured during armed conflict, and those who believe that detainees should be charged with crimes or released "seriously misunderstand" the purpose of detention--that is, "self-protection." With more than two hundred Guantanamo habeas cases pending, immediate congressional action is essential. He said we must establish a framework for federal courts that ensures the protection of Americans as well as the rights of detainees. Attorney General Mukasey also outlined six principles "well-established in existing law" that Congress should incorporate in new legislation.

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