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.

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