-- "Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes. Twenty individuals have already been charged, and many more may be charged in the upcoming months. Last Thursday, we received a favorable decision from a federal court rejecting the effort of a detainee to block his military commission trial from going forward, but detainees will inevitably file further court challenges in an effort to delay these proceedings."
-- "Fourth, any legislation should acknowledge again and explicitly that the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans--soldiers and civilians alike."
-- "Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. And Congress should adopt rules that strike a reasonable balance between the detainees' rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. In other words, Congress should accept the Supreme Court's explicit invitation to make these proceedings, in a word repeated often in the Boumediene decision, practical...."
-- "Sixth and finally, because of the significant resource constraints on the Government's ability to defend the hundreds of habeas cases proceeding in the district courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. "
Thank you for that introduction. AEI's scholars and fellows have contributed valuable scholarship on many of the central public policy issues of our time, and it is therefore a great privilege to be with you.
When I was nominated as Attorney General, I believed that I had been chosen in part because I knew something about terrorism. When I was a federal judge in the Southern District of New York , I presided over several significant terrorism matters, and after I left the bench I gave speeches and even wrote a bit on issues relating to the War on Terror. When I became Attorney General, however, it didn't take me long to discover how much I had not known--both about the nature and extent of the threat, and about the varied and extensive resources, human and technological, that the Department of Justice and the Executive Branch as a whole--civilian and military--have deployed to confront that threat.
One of my most solemn obligations, especially as we look ahead to the first post-2001 transition, is to try, along with others in our government, to make sure that our efforts in this conflict are put on a sound institutional footing so that the next Attorney General and the new Administration have in place what they need to continue to assure the nation's safety.
One success in that category occurred just two weeks ago, when the President signed into law the most significant reform of our surveillance statutes in a generation--bipartisan legislation that will give our intelligence professionals critical long-term authorities to monitor foreign intelligence targets located overseas. This modernization of the Foreign Intelligence Surveillance Act showed how the political branches can work together to put our national security laws on a more solid foundation.
Today, I would like to discuss one particular institutional challenge that we still face--the continued detention of enemy combatants after the Supreme Court's recent decision in Boumediene v. Bush. In that decision, the Court ruled that the 270 or so enemy combatants detained at Guantanamo Bay have a constitutional right to challenge their detention in federal court through petitions for habeas corpus. The Supreme Court said explicitly, however, that it was not deciding questions relating to how those habeas corpus proceedings must be conducted. It is those questions - the questions that Boumediene left unanswered, and how I believe the political branches should answer them - that I would like to discuss today.