The law, policy, and enemy combatants.

Abrahamson, James L.

The Law, Policy, and Enemy Combatants

By Michael B. Mukasey, U.S. Attorney General

Reviewed by James L. Abrahamson, Contributing Editor

text: http://www.usdoj.gov/opa/pr/2008/July/08-opa-633.html

video: http://www.aei.org/events/eventID.1762,filter.all/event_detail.asp#

In a July 21, 2008 speech at the American Enterprise Institute for Public Policy Research, Attorney General Michael B. Mukasey highlighted efforts to put America's institutional response to the war on terror on a sound footing prior to January 2009. Though particularly concerned with the need for the political branches of the government to respond to the Supreme Court's Boumediene decision, he first laid down some markers often overlooked in regard to the unlawful combatants detained at Guantanamo.

The United States government, he affirmed, "has every right to capture and detain enemy combatants ... and need not simply release them to return to the battlefield." The right of such detainees to challenge their detention is, moreover, far from clear because the existing laws of war do not address a conflict like the war on terror in which one party to the struggle respects "neither the laws of war nor the norms of civilized behavior." Nor is it clear how or when this conflict will end, the traditional point at which prisoners are exchanged. That makes it no "less important or any less fair," according to the attorney general, for the U.S. to detain for the duration those who have taken up arms against it. It is a serious misunderstanding, he explained, to believe that the government "must charge detainees with crimes or release them."

In its Boumediene decision, however, the Court by a 5-4 decision rejected earlier efforts of the political branches to define detainee policy, and for the first time gave to "an enemy alien combatant detained outside the United States" the right to habeas corpus. While doing so, the Court failed to detail a procedure for the conduct of habeas corpus hearings even as it acknowledged the need to accommodate the burden that the decision might place upon the military and the intelligence services.

The attorney general told his listeners that he looks to Congress to "make clear" that federal courts may not demand that enemy combatants be brought to the United States or that intelligence be compromised during habeas corpus hearings. Legislation should also confirm that hearings may not keep military commission trials at Guantanamo from going forward and that unlawful combatants may be held for the duration of the war on terror. To ensure orderly hearings with consistent and "practical" procedural standards, Congress should award jurisdiction to a single district court. Nor must the procedures established "interfere with the mission of our armed forces" by, for instance, requiring soldiers to search the battlefield for witnesses or leave the front lines to testify at hearings. Congress should also bar detainees who have applied for habeas corpus hearings from initiating other forms of litigation.

The attorney general concluded with the hope that the political branches of the government would act in response to the Bourmediene decision in the same "swift, decisive, and bipartisan" manner characteristic of the immediately aftermath of September 11, 2001. This reviewer shares that hope.