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Administration Strategy for Detention Now in Disarray

By Michael Abramowitz
Washington Post Staff Writer
Friday, June 13, 2008

In the days following the Sept. 11 attacks, President Bush and his advisers sought to create an unprecedented parallel system to detain suspected terrorists far from the normal scrutiny of the U.S. judiciary. The naval base at Guantanamo Bay offered a way to indefinitely hold those individuals the administration considered among the most dangerous in the world.

But the Supreme Court's decision yesterday to grant habeas corpus rights to the detainees struck at the very core of the administration's approach, as a narrow majority ruled that even hardened suspects are due the basic right to challenge their custody in federal court. The ruling throws into disarray the administration's detention strategy, almost certainly leaving to Bush's successor and the next Congress the dilemma of what to do with the Guantanamo Bay detainees.

More than six years after the administration began flying suspected al-Qaeda and Taliban members to Cuba, confusion and uncertainty now cloud the operations at Guantanamo Bay: Only one detainee has received a verdict, hundreds have had no opportunity to challenge their detention and the government is facing a flood of new litigation invited by the court.

Even administration officials are uncertain about their next steps, and their surrogates were bitterly blaming the Supreme Court for seizing policy that they say the White House and Congress should set. They noted that the White House had done as the court previously demanded, working with Congress to put lawmakers' imprimatur on detainee policy.

"It leaves the government and the next administration with a serious problem," said Bradford A. Berenson, a former Bush White House lawyer. "Every detainee now at Guantanamo, and maybe detainees held elsewhere, are now going to come into court and demand a trial-type proceeding where they can force our military to justify their detentions under standards normally applicable only under the routine civilian context. This is undoubtedly going to produce an avalanche of burdensome litigation and, more seriously, erroneous releases of very dangerous people."

But even some Republican lawmakers contend that the Bush administration also has itself to blame. Sen. Arlen Specter (Pa.), the ranking Republican on the Judiciary Committee, said the limited information made public so far about the detainees' cases has been unconvincing.

"I think that while there are still tremendous concerns about a terrorist threat, the administration has not made its case that the people in Guantanamo really are threats," he said in an interview.

Others fault the administration for not pursuing a more pragmatic detention policy that recognized the Supreme Court's clear interest in more congressional involvement and meaningful legal rights for detainees. Lawyers inside and outside the administration warned the White House that it needed to move more aggressively to placate the justices.

"The court might have upheld a statute like this five years ago," said Martin S. Lederman, an associate professor at Georgetown University Law Center and former Justice Department lawyer. Administration officials "have made the court much more hostile and skeptical of the president and his wartime judgment than they ever had to. There was incredible goodwill and deference six years ago, and they squandered it."

The White House dismissed such arguments yesterday. "Lots of people like to put on their 20/20 rearview glasses," spokesman Tony Fratto said. He added: "This was not a slam-dunk by the Supreme Court -- this was a deeply divided decision -- but there's no question it has done damage to our ability to protect the country."

Bush has long expressed a desire to close the detention facility at Guantanamo Bay, and his administration has moved in recent years to return large numbers of detainees to their home countries. But of the 270 still detained there, about half are considered too dangerous to release, even though the government does not have enough evidence to charge them -- presenting a serious dilemma to presidential candidates John McCain and Barack Obama, both of whom have promised to shut down the facility if elected.

In commenting on the Supreme Court case yesterday, neither candidate offered a detailed prescription for how he would fulfill his pledge.

McCain, the presumptive Republican nominee, told reporters in Boston that he had not yet read the opinion, but he expressed concerns about the rights it might impart to the people being held there. "These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice [John] Roberts's opinion in this decision," he said, referring to the chief justice's dissent. "But it is a decision that the Supreme Court has made. Now we need to move forward. As you know, I always favored closing Guantanamo Bay and I still think we ought to do that."

Obama issued a statement expressing support for the decision, saying it strikes the proper balance between fighting terrorism and "protecting our core values." The Illinois Democrat said that "the court's decision is a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo -- yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law."

Matthew Waxman, a Columbia University law professor who formerly worked on detainee policy in the Bush administration, said he hopes the court's decision will present an opportunity to address problems at Guantanamo Bay. "This administration has repeatedly passed up opportunities to work with Congress and our allies on sensible detention policies," he said. "The long-term result has been to strengthen neither presidential power nor our counterterrorism policies."

Staff writer Juliet Eilperin and staff researcher Julie Tate contributed to this report.

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