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Critics Study Possible Limits to Habeas Corpus Ruling
Affirming Right to Challenge Detention Is Considered by Some a Taking of Federal Power

By Michael Abramowitz
Washington Post Staff Writer
Saturday, June 14, 2008

The White House and allies in Congress have begun exploring how to limit the scope of this week's Supreme Court ruling that says suspected terrorists held at Guantanamo Bay have the right to challenge their detentions in federal court.

Administration lawyers were digesting the ramifications of a decision they condemned as an unjustified judicial usurpation of federal and congressional prerogatives in waging war. They said the court provided little guidance for the standards judges should use in evaluating the claims of detainees seeking release, and suggested that they might press Congress to spell out new rules.

"We're looking at all options," said a senior administration official who insisted on anonymity to discuss internal deliberations. "One of those options is to look and see if there is any way to legislatively contain the scope of the decision. The court's language is quite ambiguous. We need to make sure that we are anticipating the questions it raises, and that is what we are going to do in the next few days."

Sen. Lindsey O. Graham (R-S.C.), a key figure in detention policy on Capitol Hill, said he is concerned that detainees will shop for sympathetic judges while challenging issues including their treatment, food and lodging.

"I am hoping that there is some legislative enactments that we can pass that would protect our national security requirements," Graham said.

Some Democrats counseled patience. "There is no need for quick-fix legislation," said Jim Manley, spokesman for Senate Majority Leader Harry M. Reid (D-Nev.). "No one is being released from custody. We need to study the opinion and consider next steps with great care."

Sen. Carl M. Levin (D-Mich.), chairman of the Armed Services Committee, said it "seems unlikely that anything will be resolved in the next seven months. It'll be something that the next administration will have to deal with."

Over the past six years, the administration has been riven with debate over what to do with suspected terrorists seized overseas, and it has been slapped down three times by the Supreme Court over its efforts to create a legal framework outside the regular criminal justice system.

Several lawyers inside and outside the government said the latest rebuff from the high court may well represent the tipping point in the debate over the detention facility at Guantanamo Bay, Cuba, which many around the world regard as a symbol for U.S. lawlessness. President Bush has repeatedly stated he wants to close down the facility, but administration officials have been unable to determine how to do so.

Charles "Cully" D. Stimson, who oversaw detainee affairs for the Pentagon until early 2007, said that the Bush administration has several options on Guantanamo -- but that almost all of them end in the facility's closure. He said Bush could run out the clock and leave such decisions to the next president, or he could take the "bold move" of immediately ordering Guantanamo's safe and secure closure.

"The legal rationale underlying the establishment of Guantanamo has been eviscerated by this decision," said Stimson, now at the Heritage Foundation. "The question is not if Guantanamo will close; it's when."

Stimson said the administration could "reluctantly embrace" the Supreme Court's decision and pull together the evidence to justify holding the detainees, then present it in hearings before judges in Washington. He said he believes most of the people held at Guantanamo would be considered enemy combatants, while a "small percentage" would have to be released. Currently, 270 detainees are held at Guantanamo.

Defense officials have not spoken publicly about Guantanamo since the Supreme Court decision, but officials said privately they are preparing for the possibility that the detention facility could close in the near future. Defense officials do not expect to take any newly captured terrorism suspects to the facility and have taken only six new detainees to Guantanamo since early 2007.

U.S. District Court officials said yesterday that they are still seeking to set up meetings with attorneys representing both the government and the detainees to work out legal and logistical issues. The District Court's judges will then discuss how to proceed with the habeas corpus reviews.

This week, lawyers representing several detainees filed motions to set scheduling conferences, and one asked a judge to force the government to treat his client as a prisoner of war entitled to the rights of the Geneva Conventions.

Staff writers Josh White, Joby Warrick and Del Quentin Wilber and staff researcher Julie Tate contributed to this report.

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