Mukasey reiterated the Bush administration's disagreement with the Supreme Court's Bush v. Boumediene decision, noting that it marked the first time that the court had recognized habeas rights for alleged enemy combatants held outside the United States.

He noted that the Supreme Court had not determined what process was required in these habeas proceedings and had recognized that "practical considerations and exigent circumstances" should be taken into account.

It is appropriate for Congress and the president to move ahead to determine the proper procedures, Mukasey said, because they are the branches of government "affirmatively charged by our Constitution with protecting national security....and are in the best position to weigh the difficult policy choices."

The main points of Mukasey's proposal are:

- GITMO prisoners should not be allowed into the U.S. for habeas hearings and certainly should not be released into the U.S. if freed by a judge.

- One federal judge should decide all of the legal issues involved in the cases in order to avoid disagreement and confusion.

- The government shouldn't be forced to disclose information that would help terrorists figure out U.S. intelligence collection methods.  Mukasey, a former federal judge, recalled that he presided over a case in 1995 in which a list of unindicted co-conspirators was released, including the name of Osama bin Laden.  Mukasey maintained this tipped off bin Laden that the U.S. was aware of him.

- Military commission trials of those charged with war crimes should move ahead with any habeas challenges to follow. (The first of those trials was to begin today.)

- Military personnel should not be required to risk their lives to create arrest reports and chain-of-custody reports required in standard criminal cases. 

What do you think?  Are Congress and the president better able than the courts to determine the procedures of habeas proceedings?  Will Democrats feel compelled for political reasons to go along with the Mukasey proposal as they did with the FISA law? What do the Detainee Treatment Act and Military Commissions Act say about Congress' competence in this area?

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