US President George W. Bush (C) steps of
Tim Sloan  /  AFP - Getty Images
Sen. Arlen Specter, left, will conduct a Judiciary Committee hearing Wednesday on President Bush's Guantanamo policy. Specter and Bush appeared Tuesday at a Pennsylvania fund-raiser for Sen Rick Santorum, right.
By Tom Curry National affairs writer
msnbc.com
updated 6/15/2005 7:47:29 AM ET 2005-06-15T11:47:29

If the detention facility at the Guantanamo Naval Base is closed, as a few members of Congress have suggested in recent days, where should the 520 alleged soldiers and terrorists held there be sent?

And what should be United States policy for detaining such people in a war that may last 20, 30 or 40 years?

It increasingly looks as if the Senate, led by Judiciary Committee chairman Sen. Arlen Specter, might try its hand at creating policies to answer the legal quandaries spawned by a war unlike any the United States has fought before.

Specter will conduct Judiciary Committee hearings Wednesday morning, taking testimony from some of the military officers in charge of detainee procedures at Guantanamo, as well as from critics of the Bush administration’s handling of the detainees.

Senate Majority Leader Bill Frist joined the debate over Guantanamo’s future Tuesday, telling reporters, “I believe absolutely that we should not shut it down. ... The legal issues do need to be addressed, but let’s not cut and run. If reforms and new actions need to be taken, we will do it.”

Defense Secretary Donald Rumsfeld said Tuesday it was necessary to continue to using Guantanamo to hold al-Qaida and other detainees, partly because there was no better facility available.

"I don’t know any place where we have infrastructure that’s appropriate for that sizable group of people," he told reporters, adding that the Defense Department had already invested $100 million in the facility.

McCain: Either try or release
Another leading Republican, Sen. John McCain of Arizona, said, “The issue is more related to the disposition of prisoners than to Guantanamo Bay itself.”

In 2003, McCain and two other senators wrote a letter to Rumsfeld urging him to either put the detainees on trial or release them.

McCain added, “We are signatories to numerous treaties concerning basic human rights. One of them is that someone can not be held in detention indefinitely without some kind of adjudication of their case.”

McCain sounded skeptical when asked whether Congress needs to write rules for how long detainees can be kept in custody. “I don’t know how you can do that, because these are very widely varying cases. They just have to be disposed of in a reasonable fashion. I hope that doesn’t mean that Congress would dictate some kind of judicial procedure.”

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The Bush administration contends that those being held at Guantanamo are unconventional combatants in a new kind of war, not wearing uniforms, not serving a nation-state, and therefore not protected by the 1949 Geneva Convention.

Supreme Court leaves uncertainty
The Supreme Court ruled last June in two cases, Rasul v. Bush and Hamdi v. Rumsfeld, that the federal courts have jurisdiction to conduct habeas corpus hearings to determine the legality of the detention of those held at Guantanamo.

But the justices left more questions unanswered than they answered.

"The Court only made clear that it intended to exercise some form of review over the legal status of detainees, but punted all of the hard questions — what level of proof, what procedures, what standards for military determination — to the lower courts,” said former deputy assistant attorney general in the Bush Justice Department, John Yoo, who teaches at Boalt Hall law school at the University of California at Berkeley.

"We have no idea yet how intrusive the courts want to be, but this is an area where courts have rarely, if ever ventured,” Yoo said. “It is important that they not interfere with the decisions of the president and Congress in deciding what strategies and tactics work best in winning the war on terrorism.”

(Yoo’s critics have assailed him for having a part in writing an August 2002 Justice Department memo that discussed the legal definition of torture, charging that interrogators may have interpreted the memo as authorizing abuse of detainees.)

Specter has questions
In an interview previewing his hearings, Specter said, “With respect to Guantanamo, the Supreme Court has handed down decisions which focus accurately on the constitutional responsibility of Congress to establish rules in this area. I do not purport to have answers, but I do think there are questions of exactly what the commissions are doing.”

Acting under an order from Bush, the Defense Department has set up commissions to conduct trials of those at Guantanamo who have allegedly violated the customary international rules of warfare.

The legality of those commissions is now being challenged in a case before the Court of Appeals for the District of Columbia Circuit.

"The authority of the president as commander-in-chief to protect America is a very broad authority to defend us in time of war and I believe we are at war,” Specter said. “The next question is: what is the reason for detention? And the reason for detention varies in accordance with the severity of the consequences of release (of a particular detainee), so that has to be evaluated. It may turn out to be very tough judgment call. I don’t know what the answer is, but I do think it is salutary to raise questions.”

Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee, called Tuesday for “a deep and unbiased look at our detention policies worldwide. Guantanamo is not the only place and we don’t know all of the places (where detainees are held). We don’t know whether the Geneva Convention is really being observed or not being observed….”

Feinstein seeks independent panel
She suggested the appointment of an independent commission to “assure the world that what we are doing is the right thing, or if it isn’t, and the recommendation is to close it (Guantanamo) down that we guided by that recommendation.”

Yoo said the issues the Judiciary Committee needs to address Wednesday are: “What is the best long-term plan for the detention of al Qaida and other terrorist detainees and their interrogation for actionable intelligence to stop future attacks on the American people?  Should Congress intervene to limit the scope of judicial review over the legal status of captured terrorists by amending the federal habeas corpus statute?”

In the end, Yoo predicted, “I think it unlikely that Congress will write legislation on these issues.  It has never done so in any previous American war, except the Civil War.  Such decisions have usually been left in the hands of the President as Commander-in-Chief and the U.S. armed forces, because they involve important questions of strategy and tactics that are even more crucial here toward winning the war.”

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