Administration Calls for Action on Detainees

After a major setback in the Supreme Court last month, the Bush administration urged Congress on Monday to work out a plan for allowing prisoners in Guantánamo Bay to contest their incarcerations before federal judges — but without ever letting them set foot in the United States because of the “extraordinary risk” they pose.

As part of the plan, the administration also wants Congress to “reaffirm,” nearly seven years after the Sept. 11, 2001, attacks, that the United States “remains engaged in an armed conflict with al Qaeda” and other terrorist groups. The administration used Congress’s original affirmation of an armed conflict, three days after 9/11, not only to invade Afghanistan, but also to incarcerate enemy combatants without trial and to conduct wiretaps on Americans without a court warrant.

One month after the Supreme Court ruled that prisoners at Guantánamo had the right to challenge their incarcerations in federal court, Attorney General Michael Mukasey laid out the administration’s intentions Monday for the first time.

In effect, his proposal to get quick Congressional action before federal judges begin hearing appeals later this year would put the treatment of the Guantánamo prisoners back before Congress, rather than leaving the process entirely in the hands of the judiciary. But with Congress on the verge of a long summer break, it is not clear how quickly new legislation could be approved.

The high court on June 12 declared unconstitutional a provision of the Military Commission Act of 2006, included at the request of the administration, that stripped the federal courts of the jurisdiction to hear habeas corpus petitions from detainees seeking to challenge their designation as enemy combatants.

“I am urging Congress to act to resolve the difficult questions left open by the Supreme Court,” Mr. Mukasey said in a speech delivered at the American Enterprise Institute. His remarks came on the day the first trial of an enemy combatant held at Guantánamo started. After years of delay, Salim Hamdan, who the government charges was Osama bin Laden’s driver, went on trial Monday before a military commission.

There are some 275 other detainees at Guantánamo Bay who the Supreme Court ruled also have the right to challenge their detentions in civil court.

In laying out a six-point plan for responding to the court ruling, Mr. Mukasey said the federal courts would become clogged with inconsistent and unwieldy appeals from the Guantánamo prisoners unless Congress acted quickly to set clear rules for how to proceed.

He said all the appeals should be consolidated in a single court, probably the district court in Washington. Prisoners should not be allowed to physically attend the appeal hearings in the United States, he said, but they could view the proceedings from a secure video link from Guantánamo — a comment that appeared to signal that the administration plans to keep the base open for the time being.

The courts should also not be allowed to release a prisoner into the United States if he is cleared, he said. And the proceedings should not be allowed to delay the military commission trials at Guantánamo Bay, with some 20 prisoners now awaiting trial for war crimes and others expected to be tried later. Only after those trials are completed should prisoners be able to appeal their detentions to the civilian courts, the attorney general said.

Meanwhile, civil liberties advocates representing some of the Guantánamo detainees were quick to attack the principles laid out in Mr. Mukasey’s plan.

“What Mukasey is doing is a shocking attempt to drag us into years of further legal challenges and delays,” said Vincent Warren, executive director of the Center for Constitutional Rights, which has led many of the legal challenges over Guantánamo. “The Supreme Court has definitively spoken, and there is no need for congressional intervention,” he said, adding that the courts should now be allowed to take up the cases.