WASHINGTON (Reuters) - Congress should explicitly declare a state of armed conflict with al Qaeda to make clear the United States can detain suspected members as long as the war on terrorism lasts, U.S. Attorney General Michael Mukasey said on Monday.
Mukasey urged Congress to make the declaration in a package of legislative proposals to establish a legal process for terrorism suspects held at Guantanamo, in response to a Supreme Court ruling last month that detainees had a constitutional right to challenge their detention.
“Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us,” Mukasey said in a speech to the American Enterprise Institute.
“Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban and associated organizations,” he said.
Mukasey was not asking for a formal declaration of war, which would trigger certain emergency powers under the Constitution and international law, a Justice Department spokesman said. U.S. President George W. Bush has on numerous occasions said the United States was “at war” against terrorists and cited that as a basis for his powers.
New legislation should also prohibit courts from ordering a detainee to be released within the United States. It should protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials, he said.
Democrats in control of Congress and civil rights groups reacted coolly, saying Mukasey’s proposals would avert legal oversight and stack the deck in favor of the administration.
“Essentially it means that if a president declares someone to be a terrorist, they would then have the authority to hold that person without trial forever,” said Chris Anders, senior legislative counsel of the American Civil Liberties Union.
Bush has said the antiterrorism effort would be open-ended.
Mukasey spoke as the first U.S. war crimes trial began at the U.S. Naval base in Guantanamo Bay, Cuba, where prisoners are held in a detention center condemned internationally for harsh treatment. The Supreme Court’s decision on detainee rights did not invalidate trials for those already charged.
The attorney general said the administration already has the authority to detain suspected terrorists. But he said, “It would do all of us good to have the principle reaffirmed, not that that principle itself is in doubt.”
A week after the September 11, 2001 attacks, Congress authorized “all necessary and appropriate force” against nations and groups that planned or supported the attacks. It did not specifically mention al Qaeda, which carried out the attacks, or their Taliban allies.
Some critics have said the Bush administration was too broad in asserting a nameless “war on terrorism.”
The Supreme Court has upheld the government’s right to hold al Qaeda detainees. But a U.S. appeals court last month rejected the government’s argument that an ethnic Uighur Chinese Muslim could be held under the September 2001 authority as someone affiliated with al Qaeda.
The man, Huzaifa Parhat, had been seized in Pakistan after crossing from Afghanistan in December of that year with 17 other unarmed Uighurs.
Mukasey’s proposals would also limit the courts’ role in
determining a suspect’s ties to terrorism, said Vincent Warren, executive director of the Center for Constitutional Rights.
He said the proposals would sidestep earlier court rulings and predicted more administration legal defeats. “This will be the third time, after a very clear Supreme Court ruling on what the law is, that Congress has been called upon to ... stack the deck in favor of the administration,” Warren said.
But Mukasey said new rules were needed to establish an orderly process for challenges and end delays in trying those already charged. White House spokeswoman Dana Perino said the latest Supreme Court decision “actually raised a lot more questions than it answered.”
The Democratic U.S. Senate leader, Harry Reid of Nevada, said it would be hard to pass Mukasey’s proposals before U.S. President George W. Bush leaves office next January.
Editing by Cynthia Osterman and Philip Barbara