Guantanamo Ruling Renews The Debate Over Detainees
Bush Policy Faces New Hill Challenge

By Josh White and Shailagh Murray
Washington Post Staff Writers
Wednesday, June 6, 2007

The decision by U.S. military judges on Monday to dismiss the war crimes charges against two detainees at Guantanamo Bay, Cuba, has reignited a debate over how to try those accused of terrorism, prompting members of Congress to challenge the Bush administration over a legal system that they say denies proper rights to detainees and has yet to bring a single case to trial.

In dismissing the charges against detainees from Canada and Yemen, the judges ruled that the Military Commissions Act of 2006 lacked jurisdiction because that law limits cases to those who are deemed "unlawful enemy combatants." Because a tribunal had officially deemed both men "enemy combatants," the letter of the law did not allow the detainees to go to trial, the judges determined. Prosecutors say they hope to try about 80 of the 380 detainees at Guantanamo, but all such cases are now on hold -- one more setback in a five-year effort to bring even one case to trial.

There long have been bipartisan calls to shut down the detention facility, but congressional efforts instead have aimed at fixing a legal system there that some consider broken but inevitable. Members of Congress who have opposed the hastily written commissions act renewed their calls yesterday for a new system, demanding that detainees be moved to U.S. federal courts or that the law be rewritten to grant them important rights, such as habeas corpus.

Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee and an outspoken opponent of the Military Commissions Act, said yesterday that legislation he and Sen. Arlen Specter (R-Pa.) have sponsored to restore habeas corpus rights will be taken up by the committee this week. Both senators have argued that the law is dangerous because it suspended habeas corpus, or the right of detainees at Guantanamo to challenge their detention in federal courts.

"These court decisions underscore that, far from being beyond reproach, the system set up by this administration in the weeks before the last election is not adequate and cannot be trusted with the liberties of millions of people," Leahy said. He called Monday's decisions "the latest rebukes" of the "legally suspect systems for addressing detainees."

Senate Majority Leader Harry M. Reid (D-Nev.) said legislation restoring habeas corpus rights will be brought to the Senate floor, possibly this month.

Sen. Carl M. Levin (D-Mich.), chairman of the Armed Services Committee, in recent months drafted a provision included in the defense authorization bill that would overhaul the military's Combatant Status Review Tribunals at Guantanamo. The provision, according to congressional staff members familiar with its language, would allow detainees to have lawyers at the tribunals that decide their enemy-combatant status, would give them access to the evidence against them and would bar evidence obtained by coercion. It would also put a military judge in charge of the hearings.

Levin's language would make the commissions act's definition of "unlawful enemy combatant" the same as it is in the review tribunals, effectively eliminating the problem identified at Guantanamo on Monday.

The moves on Capitol Hill could set up a clash with the Bush administration, which yesterday disagreed with the judges' rulings. "In no way does this decision affect the appropriateness of the military commission system," White House spokesman Tony Fratto told reporters traveling with President Bush in Prague, according to Reuters.

Appellate review of the judges' decision could allow the process to continue, and Bush could veto any legislation dealing with the issue.

Though there have been at least three committee hearings on Capitol Hill in three months about the treatment of detainees at Guantanamo, congressional efforts at making changes have fallen flat. A bill by Sen. Christopher J. Dodd (D-Conn.) to rewrite the Military Commissions Act has gained little steam despite his impassioned statements about the system's flaws.

"Some Democrats are still worried these issues aren't political winners for them," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "I strongly feel that if you frame the issues in terms of who we are as a country, they are political winners."

Now, Democrats appear to be using the new momentum to try to reinvigorate such efforts. "Yet again the administration has botched their cases against detainees at Guantanamo," said Sen. Edward M. Kennedy (Mass.), adding that he thinks the facility should be closed. "It is time to abandon military tribunals and use the well-established American justice system to try detainees."

But the discussion has shifted away from closing Guantanamo, in part because no one has presented a viable alternative. Bush, Defense Secretary Robert M. Gates and other senior officials have expressed a desire to close the facility but caution that there are few other options for holding its detainees.

"Transferring trials before military commission from the security facility at Guantanamo Bay to the continental United States would hamstring the nation's ability to prosecute terrorist war crimes," Daniel J. Dell'Orto, the Pentagon's deputy general counsel, said at a Senate hearing in April. "The existing civilian court system is ill equipped to handle the dispensation of justice in the chaotic and irregular circumstances or armed conflict."

This week's ruling did not appear to sway Republican lawmakers to consider reinstituting habeas corpus. Sen. John W. Warner (R-Va.), who helped negotiate the commissions act, said "time will tell" whether Congress will reconsider. "I still have faith in the appeals process," he said.

"Congress can't suddenly begin to rewrite laws every time a federal district court judge or somebody changes their view of the law," Warner added.

Staff researcher Julie Tate contributed to this report.

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