Mocking Mukasey

As for any imminent problems stemming from the Supreme Court decision, Leahy essentially said that Congress trusts the courts, not the White House, to come up with solutions to these issues. "The courts have a long history of considering habeas petitions and of handling national security matters, including classified information," he said. "The administration made this mess by seeking to avoid judicial review at all costs, causing years of delay and profound uncertainty."

Mukasey took another crack at it in Wednesday's testimony before the House Judiciary Committee, ominously suggesting (with prodding from a couple of Republicans) that unless Congress acts, it is at least theoretically possible that federal judges may suddenly start releasing Gitmo detainees onto the streets of America. "Now, the fact is that all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions who have absolutely no right to be here," said Mukasey, in describing the more than 200 detainees still at Gitmo. "And there's no good reason to have a court bring somebody here for purposes of release, and release into our communities people who could pose a significant danger. We want that particular possibility cut off. We don't want to have to face it. We shouldn't have to face it."

A few years ago, the specter of Gitmo terrorists moving in next door might have invoked fear and panic on Capitol Hill. But no Democrat took Mukasey's dire warnings seriously enough to address them. Instead, they asked the A.G. about everything from the Justice Department's refusal to release internal legal opinions about harsh interrogations to overcrowding in the federal prisons and airline mergers.

Nadler, for one, offered an explanation for the snub: few if any Democrats now accept any of the Bush administration's basic premises on terrorism issues. "Most of them are guilty of nothing," he said about the Gitmo detainees, noting that one group of them, Chinese Uighurs (persecuted Muslim dissidents) would be considered "freedom fighters" by most Americans. "I think it's appalling that the president is still asking for the right to point the finger at anybody anywhere and say, `You're an enemy combatant,' and keep them locked up indefinitely," he said.

With attitudes like that, it's hardly likely that Congress and the administration will be able to forge a consensus on any of these issues anytime soon—even if some of Mukasey's ideas (such as setting uniform rules for the habeas proceedings) might be relatively noncontroversial. "As for their validity, I think everything he's asking for is reasonable as far as it goes," said Benjamin Wittes, who specializes in law and terrorism issues at the Brookings Institute (and is the author of the recent book, "Law and the Long War.") "But as practical reality, anything this administration proposes, the Democrats in Congress are going to oppose … I think the opportunities to address this responsibly starting in January are radically better than this year during the election."

Terror Watch appears weekly on Newsweek.com

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