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Congress must set rules for detainee hearings, Mukasey says

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  • NEW: Rights group says congressional action would lead to more delays
  • NEW: Sen. Leahy says congressional action unlikely to occur this year
  • Supreme Court ruled that detainees can challenge detention in federal court
  • Ruling left many questions unanswered, Attorney General Mukasey says
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From Kevin Bohn and Carol Cratty
CNN Washington Bureau
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WASHINGTON (CNN) -- Attorney General Michael Mukasey on Monday asked Congress to step in and define the rules that will govern civilian court hearings for about 200 detainees being held in the prison camp at Guantanamo Bay, Cuba.

Attorney General Michael Mukasey says Congress should define the rules for detainee hearings.

Attorney General Michael Mukasey says Congress should define the rules for detainee hearings.

Specifically, Mukasey said Congress should tell the federal courts they cannot bring the detainees to the United States for judicial proceedings nor can they order them released into the United States.

He also asked for limits on the scope of the proceedings, saying they are preliminary in nature and therefore should not be full trials.

He outlined his thoughts on the matter in a speech at the American Enterprise Institute on Monday, the same day the first military commission trial began at Guantanamo. Osama bin Laden's former driver, Salim Hamdan, is facing charges of material support for terrorism and conspiracy.

The hearings in U.S. courts became necessary after the Supreme Court last month ruled the detainees at Guantanamo have a constitutional right to contest their detention. The hearings will occur before any detainee faces trial. See how the military tribunals in Guantanamo will work »

"Although the Supreme Court settled the constitutional question of whether the Guantanamo detainees have the right to habeas corpus, the court stopped well short of detailing how the ... proceedings must be conducted," Mukasey said. "In other words, the Supreme Court left many significant questions open, and it is well within the historic role and competence of Congress and the executive branch to attempt to resolve them."

Habeas corpus is the right given to defendants to contest their detention.

A group representing many of the Guantanamo detainees in legal situations denounced Mukasey's proposal.

"What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays. The Supreme Court has definitively spoken, and there is no need for congressional intervention," Center for Constitutional Rights Executive Director Vincent Warren said in a written statement.

Sen. Patrick Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, issued a statement indicating congressional action is likely, but "Congress must not rush to pass yet another piece of ill-conceived legislation."

"With so little time left in this legislative session and the complexity of these issues, it may be an issue more responsibly addressed in the next Congress with a new president," he said.

The chief judge of the U.S. District Court in Washington, which is overseeing the hearings, said instructions from Congress would be welcome, but he would like them as soon as possible.

"Guidance from Congress on these difficult subjects is, of course, always welcome," said Judge Royce Lamberth. "Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful."

The judges are in the midst of grappling with how to organize the hearings and deciding on rules that will govern them, including determining what evidence will be heard, how classified evidence will be handled and what the timetable for the sessions will be.

Among the other questions that the Justice Department and lawyers for detainees are currently trying to iron out include how much evidence defense lawyers will be able to obtain, whether hearsay evidence will be used, and what the standard will be for obtaining a hearing.

The evidence in the hearings will deal with intelligence and national security issues and could involve requests to military personnel serving in war zones, and Mukasey told the American Enterprise Institute that Congress must take those factors into account in helping to set up the rules.

"The court recognized, with good reason, that certain accommodations must be made, as the Supreme Court put it, 'to reduce the burden habeas corpus proceedings will place on the military' and to 'protect sources and methods of intelligence gathering,'" Mukasey said.

The attorney general said that if Congress does not set up the guidelines there will be serious risk of inconsistent rulings, and different judges on the same court could disagree on questions, which would lead to a long term of protracted litigation.

Mukasey was asked if the administration has suggested legislation to send Congress and whether it's likely action could happen in an election year. Mukasey said legislation would be up to Congress but Justice Department officials are ready to provide assistance.

"The fact that it's an election year optimistically should create an even greater incentive for Congress to show its talents and act nimbly," he said.

The Center for Constitutional Rights said in its statement that "for six and a half years, Congress and the Bush administration have done their level best to prevent the courts from reviewing the legality of the detention of the men in Guantanamo. Congress should be a part of the solution this time by letting the courts do their job."


Leahy, in his statement, echoed that sentiment, saying that "the administration made this mess by seeking to avoid judicial review at all costs, causing years of delay and profound uncertainty. It has been rebuked four times by the Supreme Court. Habeas corpus is the ultimate guarantee of fairness and a check on executive excess."

He also chided Mukasey for not informing or consulting with his committee about his request for congressional rule-setting.

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