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Monday, July 21, 2008
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Transcript of Remarks by Attorney General Michael B. Mukasey at the American Enterprise Institute for Public Policy Research

11:05 A.M. EDT

MR. DEMUTH: Ladies and gentlemen, welcome to the American Enterprise Institute and to this address by Attorney General Michael Mukasey.

Judge Mukasey was nominated and confirmed as Attorney General last fall following a highly distinguished career on the bench and bar in New York City and in the Federal Southern District of New York, which included many years of practice at the firm of Patterson Belknap Webb & Tyler, four years as Assistant United States Attorney, and 18 years as a federal district court judge, six of them as chief judge.

During his judicial tenure, Judge Mukasey was on the front lines of the complex and contentious issues, the intersection of criminal law, procedure and prosecution on the one hand and terrorism surveillance and combatant detention on the others. These issues have been central preoccupations of his since becoming Attorney General and will be the subject of his remarks this morning, which will concern in particular legal policy in the wake of the Boumediene decision.

Please give a warm welcome to Attorney General Judge Michael Mukasey.


ATTORNEY GENERAL MUKASEY: Thank you very much for that kind introduction. AEI's scholars and fellows have contributed valuable scholarship on many of the central public policy issues of our time, and so it is therefore a great privilege for me 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 on 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 in general, civilian and military, have deployed to confront that threat.

One of my most solemn obligations, especially as we look ahead to the 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 assure the nation 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 Boumediene left unanswered and how I believe the political branches should answer them that I would like to discuss today. At the outset, it is worth stressing that the Boumediene Decision is about the process afforded to those we detain in our conflict with al-Qaeda, the Taliban, and associated groups, not about whether we can detain them at all.

The United States has every right to capture and detain enemy combatants in this conflict and need not simply release them to return to the battlefield as indeed some have after their release from Guantanamo. We have every right to prevent them from returning to kill our troops or those fighting with us and to target innocent civilians. In addition, this detention often yields valuable intelligence about the intentions, organization, operation and tactics of our enemy. In short, detaining dangerous enemy combatants is lawful and it makes this country safer.

Although our right to detain enemy combatants in the armed conflict is clear, determining what if any rights those detainees should be granted to challenge their detention has been more complicated. This is not surprising, because the laws of war governing detention of enemy combatants were designed with traditional armed conflicts in mind. However, as the President emphasized shortly after the attacks on September 11, 2001, the war on terror is a different sort of war.

We are confronted, not with a hostile foreign state whose fighters wear uniforms and abide by the laws of war themselves, but rather with a dispersed group of non-state terrorists who wear no uniforms, and abide by neither laws nor the norms of civilization. And although wars traditionally have come to an end that is easy to identify, no one can predict when this one will end or even how we will know that it's over. It is after all rather hard to imagine Al-Qaeda and its allies laying down their arms and citing articles of surrender on the deck of an American warship.

But those differences do not make it any less important or any less fair for us to detain those who take up arms against us. Over the past seven years the three branches of our government have been engaged in a dialog, and, to put it candidly, at times a sharp debate, over the appropriate legal process for detaining combatants in this new kind of conflict. In the first few years after the September 11 attacks, for example, the Executive Branch took the view consistent with the traditional laws of war that we could detain enemy combatants for the duration of hostilities without judicial review of those detentions as we had done in World War II and earlier conflicts.

In 2004 the Supreme Court agreed that enemy combatants could be detained based on military evaluations for the duration of the hostilities. At the same time, the Court recognized a role for the courts in reviewing the government's basis for detaining those enemy combatants. Following these developments, Congress and the administration tried to apply the Court's guidance in working out how judicial review might fit within a traditional framework of military detention.

The answer provided in the Detainee Treatment Act of 2005 and reaffirmed by the Military Commission's Act a year later was to establish a new system of judicial review of decisions by the Department of Defense as to the status of detainees at Guantanamo. One central feature of this system was that Guantanamo detainees could not file lawsuits in the United States seeking the statutory remedy of habeas corpus, but seek review in a Federal Court of Appeals in Washington, D.C. of the determinations of the military tribunals.

Taken together, these laws gave more procedural protections than the United States, or any other country for that matter, had ever before given to wartime captives, whether those captives were lawful soldiers and foreign armies or unlawful combatants who target civilians and hide in civilian populations.

The Supreme Court considered those procedures in Boumediene v. Bush and decided by a 5 to 4 vote that they were not adequate to fulfill the constitutional guarantees of habeas corpus. It is important to note here that the Court did not invalidate the separate system of military commission trials established to prosecute some detainees for war crimes, including people alleged to have been directly responsible for the September 11 attacks.

The War Crimes trials were not reviewed by the Supreme Court in Boumediene and our proceeding. Indeed, the first trial begins today at Guantanamo. Boumediene held only that detainees at Guantanamo Bay have a constitutional right to challenge their detention to petitions for habeas corpus and that the Detainee Treatment Act procedures did not provide an adequate substitute for habeas corpus review.

Before I go any further, let me take a brief detour to explain what habeas corpus is. Although many of you are today probably familiar with, and some of you are even expert in the concept of habeas corpus, that concept is generally not the small change of daily discourse among non-lawyers in our country. In basic terms, a habeas corpus action is a lawsuit brought by someone in custody who asks to be released on the ground that his detention is unlawful.

As a federal judge, I routinely saw the most common example of habeas corpus actions: a defendant who has been convicted in state court filing an action in federal court and arguing that his conviction and detention violate the U.S. constitution. For at least a century, habeas corpus has usually applied to imprisonment in regular criminal cases and detention by Immigration authorities. Congress and the courts have developed an extensive body of law in both statutes and cases to guide habeas proceedings in those settings.

Before the Supreme Court's decision in Boumediene, however, no alien, enemy combatant detained outside the United States had ever before received the right to habeas corpus. A majority opinion itself acknowledged as much. Nonetheless, the court concluded that the unique nature of this conflict and the unique features of our naval base at Guantanamo Bay Cuba, particular the control we exercise over that base, were enough to extent the writ to cover the aliens who are detained there as enemy combatants.

We have previously expressed, and I think unsurprisingly, disappointment with the Boumediene Decision. That disappointment came about because in our judgment the political branches had established in response to prior Supreme Court guidance reasonable, indeed historic, procedural protections for detainees. The Supreme Court, however, has spoken on this issue, and our task now is to move forward consistent with the principles set forth in the Supreme Court's Decision.

The responsibility rests now with the legislative and executive branches as much as it does the judiciary. This reality follows from the Boumediene decision itself, 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 habeas corpus proceedings must be conducted. 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.

The Court also recognized that habeas proceedings for the detainees at Guantanamo Bay could raise serious national security issues and that these issues could require that we adjust the rules that would ordinarily apply in habeas proceedings brought by defendants in domestic, criminal custody. Indeed, the Supreme Court went out of its way to emphasize that, and these are the Supreme Court's words: "Practical considerations and exigent circumstances must help define the substance and the reach of these habeas corpus proceedings."

The Court recognized with good reason that certain accommodations must be made, and again these are the court's words: "To reduce the burden habeas corpus proceedings will place on the military," and "To protect sources and methods of intelligence gathering." With the Supreme Court's explicit recognition of such practical concerns in mind, let's consider some of the difficult questions that Boumediene leaves unresolved, and the policy choices that must be made in order to answer them.

First, will a federal court be able to order that enemy combatants detained at Guantanamo Bay be released into the United States? The Supreme Court stated that a federal trial court must be able to order at least a conditional release of a detainee who successfully challenges his detention. What does it mean to order the release of a foreign national captured abroad and detained at a security military base in Cuba?

Will the courts be able to order the government to bring detainees into the United States and release them here rather than transfer them to another nation? What happens if a detainee's home country will not take him back, or if we cannot transfer the detainee to that country, simply because it will not provide the required humanitarian guarantees that the detainee will not be subject to abuse when he gets home?

Second, how will the courts handle classified information in these unprecedented court proceedings? A lot of the information supporting the detention of enemy combatants held at Guantanamo Bay is drawn from highly classified and sensitive intelligence. Some of it was obtained by exposing American military and intelligence personnel to extraordinary dangers, and we know from bitter experience that terrorists adjust their tactics in response to what they learn about our intelligence gathering methods.

For the sake of national security we cannot turn habeas corpus proceedings into a smorgasbord of classified information for our enemies. We need to devise rules for habeas corpus cases that will provide for the necessary protection of national security information.

And, third, what are the procedural rules that will govern those court proceedings? Does Boumediene require that each detainee receive a full dress trial with live testimony by the detainee here in Washington? Will a detainee be able to subpoena a soldier to return from combat duty in Afghanistan or Iraq to testify? Should one detainee be allowed to call other detainees as witness or compel the United States to reveal its intelligence sources in order to establish the admissibility of critical evidence?

One could say, I suppose, that these questions should be left to the courts to resolve through litigation, but I do not think that is the most prudent course. Unless Congress acts, the lower federal courts will determine the specific procedural rules that govern the more than 200 cases that are now pending. With so many cases there is a serious risk of inconsistent rulings and considerable uncertainty. The federal court in the District of Columbia is already working on some of these issues; and, I believe that court should be commended for the preliminary steps it has taken thus far to provide for the fair, efficient, and prompt adjudication of these cases. But, it hardly takes a pessimist to expect that without guidance from Congress, different judges, even on the same court, will disagree about how the difficult questions left open by Boumediene should be answered. Such disagreement will, in turn, lead to a long period of protracted litigation, and the possibility of different procedures being used in different cases until perhaps the Supreme Court intervenes yet again.

But, uncertainty is not the only, or even the main reason these issues should not be left to the courts alone to resolve. There is also the question of which branches of government are best suited to resolve them. I am a former federal judge. I appreciate fully the institutional strengths of our courts and the critical role the judiciary plays in our system of government. But, I am also acutely aware of the judiciary's limitations. Judges decide particular cases and they are limited to the evidence and the legal arguments presented in those cases. They have no independent way or indeed authority to find facts on their own, and they are generally limited by the party's presentations of background information and expert testimony.

By contrast, Congress and the executive branch are affirmatively charged by our Constitution with protecting national security, are expert in such matters and are in the best position to weigh the difficult policy choices that are posed by these issues. Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution. But, it is our elected leaders who have the responsibility for making policy choices in the first instance.

So, today, I am urging Congress to act to resolve the difficult questions left open by the Supreme Court. I am urging Congress to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way; and, as the Court itself urged, in a practical way. I believe their are several principles that should guide such legislation. First and foremost, Congress should make clear that our federal court may not order the government to bring enemy combatants into the United States.

There are more than 200 detainees remaining at Guantanamo Bay and many of them pose an extraordinary threat to Americans. Many have already demonstrated their ability and their desire to kill Americans. As a federal judge I presided over a prominent terrorism-related trial and the expense and effort required to provide security before, during and after that trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in this habeas proceeding would require extraordinary efforts to maintain the security of the site.

To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo, which is both remote and safe. Far more critically, although the constitution may require generally that a habeas court have authority to order release, no court should be able to order that an alien captured or detained during wartime be admitted and released into the United States.

Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our nation gathers intelligence and what that intelligence is. In a terrorism case I mentioned a minute ago, the government was required to turn over to the defense a list of unindicted co-conspirators, a list that included Osama bin Laden. This was in 1995, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden's hands in Khartoum tipping him off that the United States government was aware not only of him, but also of the identity of many of his co-conspirators.

We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets and we can do so in a way that is fair to both the government and the detainees alike.

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.

Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief. So should alien enemy combatants. Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials. The victims of the September 11 terrorist attacks should not have to wait any longer to see those who stand accused face trial.

Fourth, 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 and who are dedicated to the slaughter of Americans, soldiers and civilians alike. In order for us to prevail in that conflict, 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.

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 the common legal issues be decided by one judge in a coordinative 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 -- that is, proceedings adapted to the real world we live in, not the world we wish we lived in. Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict; and they must assure that court proceedings are not permitted to interfere with the mission of our armed forces.

In other words, soldiers fighting the war on terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings. Affidavits prepared after battlefield activities have ceased should be enough. And, military personnel should not be required to risk their lives to create the sort of arrest reports and chain of custody reports that are used under very different circumstances by ordinary law enforcement officers in the United States.

As one editorialist put it, this is not CSI Kandahar. Federal courts have never traded habeas corpus as demanding full-dress trials, even in ordinary criminal cases. And it would be unwise to do so here, given the grave national security concerns that I have discussed.

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. One unintended consequence of the Supreme Court's decision in Boumediene is that detainees now have two separate and redundant procedures to challenge their detention: One under the Detainee Treatment Act, and the other under the Constitution.

Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should reaffirm its previous decision to eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Here I must make explicit and perhaps risk reiterating a point that I would hope was obvious from the discussion so far. We're talking here about habeas corpus proceedings, not about criminal trials of the sort that some, but not all of the detainees at Guantanamo Bay may face. Some people have argued that we should charge the detainees we are holding at Guantanamo with crimes or release them. We can and we have charged some detainees with war crimes. These proceedings are exceptionally important, and I referred to them earlier.

But to suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principle of reasons why we detain enemy combatants in the first place. It has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers. The Department of Defense and the Department of State have worked together to release those whom we believe can be transferred to a third country, consistent with the safety of our citizens and our military personnel abroad, and with our humanitarian commitments.

Of the 775 people who have been detained at Guantanamo, only about one-third remain. The fact that we have not charged all of those remaining at Guantanamo with war crimes should not be regarded as a fair criticism of our detention policies. Rather, it reflects the fundamental reality that these individuals were captured abroad in an armed conflict, not in a police raid.

These are the central principles that should govern Congress's effort to legislate in this area. I think they are principles that should have bipartisan support, because they would provide unprecedented access for enemy combatants to challenge their detention in federal courts, while at the same time protecting the security of our citizens.

Seven years ago when we were attacked on September 11, 2001, our nation's response to that challenge was swift, decisive, and bipartisan. Congress authorized the use of military force against Al Qaeda and others responsible for the attacks, demonstrating agreement that the nation, not by its own choice but by choice of a totally ruthless enemy, was at war. The President then swiftly deployed United States troops, and the fight continues to this day.

I hope that the political branches can work together in the same way, to address the process owed to terrorists and other combatants whom we have detained as part of this conflict. There is a pressing need for such legislation, as these cases are proceeding now. As I have explained, I believe that these questions are ones on which the judgment of the political branches can help the courts to adjudicate these cases fairly, uniformly, accurately, and efficiently, while insuring that we have firm institutions in place that will allow our nation to prosecute this war with success.

I thank you very much for hearing me, and I'll be happy to take your questions.


MR. DEMUTH: The Attorney General, as he said, has time for a few questions. I will call on you, if you could wait until the microphone arrives, introduce yourself briefly, and as ask your question. And we'll begin right here.

QUESTION: Thank you very much, Mr. Attorney General. Rob Wegar from India Globe -- Sir, with your vast experience on and about terrorism, are you in touch with one of those nations whose citizens are among 200 of them that you're holding? And finally, if you have any message for the visiting Prime Minister of Pakistan next week in Washington, because this is the centerpiece of his nation, where terrorism is concerned?

ATTORNEY GENERAL MUKASEY: Well, as you know, the job of maintaining contact with foreign governments is principally the job of the Department of State. So I am not in direct contact, although I have visited with foreign visitors, usually visiting attorneys general and interior ministers. My message to the Prime Minister of Pakistan is that he's welcome, but that's not a message that's principally for me to deliver; it's a message for the President and the Department of State to deliver.

QUESTION: All right. Mr. Attorney General, Randy Mikkelsen with Reuters. I'm wondering about the fourth point, where you ask for legislation to acknowledge explicitly the nations in armed conflict with Al Qaeda and Taliban. Is that a recognition that the legislative framework for that conflict is insufficient now? And are you in fact seeking an explicit declaration of war?

ATTORNEY GENERAL MUKASEY: I'm asking a reaffirmation of something that was enacted in legislation after September 11, 2001. It goes to the authority to detain enemy combatants. I am suggesting that it would do all of us good to have that principle reaffirmed, not that the principle itself is in doubt.

MR. DEMUTH: Yes, sir.

QUESTION: Thank you, Judge. Before you came to become Attorney General, you had written about the desire to have a national security court. And this legislation looks to be creating a national security court, particularly when you want to designate a sole district court judge. Is that really what is going on here today, that you're coming out for that sort of concept and encouraging the Congress to do it?

ATTORNEY GENERAL MUKASEY: Not at all. The column you referred to -- I'm glad somebody read it --


ATTORNEY GENERAL MUKASEY: Had as a predicate to the establishment of a national security court. I think the phrase was something like "while we have the leisure." We don't have the leisure now, and this is addressed to a particular problem relating to Boumediene.

I think a national security court, about which many other people have written, two of them cited in that article, is much more comprehensive. As things stand today, that's a some-day aspiration. But we have particular problems facing us today that are addressed by the legislation I proposed. I don't think it would turn the District of Columbia Court into a national security court of the sort that I referred to as desirable while we had the leisure a year or two ago, when I wrote that.

QUESTION: Attorney General, thank you for -- I'm sorry, I'm Brian Murphy, attorney at law. Thank you for your comments, sir. I understand the --

MR. DEMUTH: Mic, please.

ATTORNEY GENERAL MUKASEY: Maybe you want to start over.

QUESTION: I apologize. Brian Murphy, attorney at law. I understand that the Hamdan case is being heard today in Guantanamo Bay. Is it your understanding that the cases will be heard in Guantanamo, or will any be heard in the United States?

ATTORNEY GENERAL MUKASEY: It's my understanding that the cases will be heard in Guantanamo; indeed the facilities at Guantanamo have been built particularly to suit those cases, to handle the volumes of classified information that will be necessary to be handled and shared with defense counsel when necessary, under a controlled environment.

QUESTION: Yeah. I wanted to ask, under the special court that you've talked about setting up, would there still be after that point an argument to be made by defense attorneys that even in the case of -- an extreme example being if Osama Bin Laden challenges his detention, or any terrorist for that matter, could they say that this type of court would not be able to grant them a fair hearing?

ATTORNEY GENERAL MUKASEY: I think, first of all, I did not designate a special court. What I said is these cases should be referred to a single court, as they are now. That is the District of Columbia court. That's done administratively. I think that should be put in place legislatively. It would stop any detainee who is charged with a war crime from challenging his detention until after his trial was over, just the same way that we do with common criminals who are accused in the United States. American citizens do not have the right before their trials begin to challenge the form in which they're detained. That happens after their trials are over. And all this would do is make that same principle applicable to foreign detainees.

QUESTION: Mr. Attorney General, thank you. Gary Mitchell from the Mitchell Report. In addition to having Congress take these steps to clarify how we deal with this new world that we're living in, I wonder if you have given any thought and/or elsewhere in the administration to the other component of this, which is: Once we clarify the policies and the procedures for us, there's a world out there that needs to understand that what we're doing is lawful and constitutional, in the best interests, et cetera. And I'm curious to know how you think we ought to think about that, and how the government could begin to take steps to clarify that so that we lessen some of the tensions internationally?

ATTORNEY GENERAL MUKASEY: Well, as you know, the job of explaining our policies to the remainder of the world is principally the job of the State Department. And I don't want to take on the role of the State Department in doing that. I think the State Department has done and will continue to do a good job in explaining that position; but I think putting regular procedures in place will go a long way toward helping them do that.

QUESTION: Ted Frank, AEI. Is there any consideration of giving the Supreme Court direct appellate mandatory jurisdiction to expedite the sort of habeas claims we're talking about, as well as sort of force them to confront the practical realities of what you proposed? ATTOREY GENERAL MUKASEY: I don't think I proposed any direct confrontation of the Supreme Court. I mean this is not designed to confront the Supreme Court. This is designed to deal with the case that the Supreme Court has decided, not to engage in some sort of in-your-face confrontation with the Supreme Court. If anything, it's designed to implement the decision that the Supreme Court reached.

QUESTION: Judge, I'm just wondering, has the administration prepared a bill to send up to Congress on this? And I wonder what you think the prospects of passage of legislation?

ATTORNEY GENERAL MUKASEY: I think that what we've proposed is that we work with Congress, and Congress passes legislation. And it's Congress's job to enact legislation, and we're happy to work with Congress in doing that. So far as the prospects of passing legislation, I think Congress has acted quickly and nimbly when it has had to. It did it obviously after September 11; it did it with the Protect America Act. Congress has talented legislators; they have talented staffs. We have quite a body of talent at the Department of Justice that's willing to help them. And together I'm sure we can craft legislation that will be responsive.

MR. DEMUTH: We have time for one or two more questions.

QUESTION: Do you see any change in the role of the FISA court in the near or distant --



QUESTION: Judge Mukasey, Ari Shapiro from NPR. The Center for Constitutional Rights and a couple of other groups are already putting out statements saying this is setting up for another round of lengthy litigation that will end in the Supreme Court striking down the system yet again. What confidence do you have that it will go better for the administration this time?

ATTORNEY GENERAL MUKASEY: The confidence that I have is that the principles that I've articulated are, as far as I know, well established in existing law. I think it would be a mistake to decide preemptively that this can't possibly succeed. I think it should succeed. I think there's every reason why it should succeed; and there is every reason why the Court should be receptive to it, having left open explicitly the questions the I have presented for what the Court itself described as practical answers. I think that the political branches are in the best position to afford those practical answers, because they're in the best position to gather facts and put them in the form of rules.

MR. DEMUTH: We have time for one more question.

QUESTION: Carol -- with CNN, Judge. While you've said that Congress can act nimbly, of course it is an election year, which creates a lot of difficulties. And what do you expect the Court that is at work now, the U.S. District Court, to do in the meantime on the --

ATTORNEY GENERAL MUKASEY: I think the fact that it's an election year optimistically should create an even greater incentive for Congress to show its talents, and act nimbly. Obviously, the D.C. Court will continue to deal, as it has, efficiently and expeditiously with the cases. I think it would be helped immeasurably by enactment of legislation that would clarify the rules.

MR. DEMUTH: Mr. Attorney General, thank you for those very fine and persuasive remarks.