Mocking Mukasey

Raising the prospect that Guantánamo Bay inmates might be unleashed onto the streets of American cities, Attorney General Michael Mukasey said Wednesday there is an "urgent" need for Congress to enact a new law governing how federal courts handle legal challenges from detainees at the U.S. prison camp in Cuba.

But Mukasey's plea for quick passage of a significant new counterterrorism measure essentially fell on deaf ears—at least from the Democrats who control Congress. "Zero," snapped one key lawmaker, Rep. Jerrold Nadler, when asked the likelihood that Congress will rush to pass the kind of law Mukasey and the Bush administration are seeking. "We don't have to pass anything," said Nadler, who chairs the House subcommittee that has primary jurisdiction over the issue, in a brief hallway interview with NEWSWEEK. "Let the courts deal with it."

The derisive comments from the feisty New York liberal—just moments after Mukasey issued his strong appeal in testimony before the House Judiciary Committee—underscores the huge and poisonous gulf that now exists between the White House and Congress on virtually every issue related to the War on Terror. No Democrats on the judiciary panel endorsed Mukasey's call Wednesday for new counterterrorism legislation. None of them even bothered to ask him any questions about it. Instead, they essentially ignored what the attorney general portrayed as the Justice Department's top priority for his final six months in office.

Mukasey's plea for action came in response to the Supreme Court's 5-4 decision last month in Boumediene v. Bush, which granted Gitmo detainees the right to challenge their incarceration in federal courts. Since the ruling, American lawyers for Gitmo detainees have flooded the U.S. district court in the District of Columbia with lawsuits seeking their immediate release.

After weeks of internal debate within the Bush administration, Mukasey went public Monday with what was described as a major policy initiative in a speech at the American Enterprise Institute, the conservative think tank that nurtured many of the administration's most controversial ideas about unilateral foreign policy and executive power. Mukasey said Congress needed to pass a new law that would determine how the courts reviewed these legal challenges (known as habeas corpus actions) and at the same time protect the country's national security interests. Such a law, he said, should bar the disclosure of classified evidence in the detainees' habeas proceedings, prohibit the detainees from being brought into a U.S. courtroom for hearings and guarantee that if a judge ordered any of them to be released, they would be not be freed inside the United States.  

Mukasey also asked that Congress, as part of this proposed new law, reaffirm that the United States remains in a state of "armed conflict," and that for the duration of that conflict, the president may detain as "enemy combatants" those who have "engaged in hostilities or purposefully supported Al Qaeda, the Taliban and associated organizations."

But Mukasey's speech left a number of unanswered questions: Under what circumstances could a Gitmo prisoner be released? What foreign countries should Gitmo detainees be released to (given that many of them hail from foreign countries that either don't want them or practice torture)? When will the armed conflict with Al Qaeda ever be deemed to be over? And what are the "associated organizations" whose "members" could be indefinitely detained?

Indeed, the Bush administration decided not even to draft specific legislation to accompany Mukasey's speech. In part, this was because the White House, despite weeks of interagency debate, was unable to reach a decision on the hardest question of all: whether President Bush should announce that Gitmo itself will finally be shut before he leaves office, according to two sources familiar with the matter who asked not to be identified talking about sensitive internal talks.
 
The result was an immediately cool reaction to Mukasey's proposal on Capitol Hill. Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, noted that Muaksey had neither "consulted with nor informed" his panel about his plans before he went public with the speech.