A Senate hearing Wednesday on the detainees held at the Guantanamo Naval Base revealed that there is no consensus among senators as to what Congress should do in order to speed up the tribunals trying the prisoners held there, or whether it should impose a time limit on detentions.
Judiciary Committee chairman Sen. Arlen Specter called the hearing “just the start of a lot of hard work by this committee to establish rules” to govern what should be done with the detainees.
“There’s a real question as to why Congress hasn’t handled it,” Specter remarked. “It may be that it’s too hot to handle for Congress, it may be that it’s too complex to handle” or that Congress is waiting for the courts to take the lead in designing detainee policy.
But Specter complained that the Supreme Court in three rulings last June and the lower federal courts, in decisions since then, had created “a crazy quilt” of muddled case law.
Complaining that the appeals courts had been mulling over some detainee cases for months, Specter said his committee would consider approving a law imposing time limits on federal courts for settling detainee cases.
Need for Congress to 'buy in'
Another GOP member of the committee, Sen. Lindsay Graham of South Carolina, urged his fellow senators to consider legislation to clarify detainee policy, if only for the reason that Congress needed to “buy in” to the president’s effort.
“There’s not enough ‘buy-in’ by the Congress as to what’s going on at Gitmo” he said.
He suggested that “if Congress developed statutory provisions to define enemy combatant status and standardizing intelligence gathering techniques and detention policy, it would help our cause.”
Democrats on the Judiciary Committee argued that the allegations of abuse of Guantanamo detainees is causing Muslims to hate the United States and making it harder to win the struggle against al Qaida.
Republicans on the panel didn't seem to buy this argument.
“We’re doing real badly,” said Sen. Joe Biden, D- Del. “It’s a disaster.... We’ve got ourselves a communications problem.”
Biden called for an independent commission to investigate treatment of detainees and to make recommendations for changes in policy.
Biden also raised two crucial questions: when will the war end and should detainees be held until it does end?
When will war end?
“If there’s no definition as to when the conflict ends, that means forever, forever, forever that these folks are held at Guantanamo Bay,” Biden said. “Has anybody at the Justice Department defined when is the end of the conflict?”
Earlier in the hearing, Brig. Gen. Thomas Hemingway, the legal advisor to the Office of Military Commissions, which is in charge of trying detainees, testified under questioning by Sen. Patrick Leahy, D-Vt., that “I don’t know how long this war is going to last” and that the United States could hold al Qaida members at Guantanamo “as long as the conflict endures.”
He added that the Defense Department set up annual review boards to review detainees' cases, “releasing them if they no longer present a threat.”
One Republican on the committee, Sen. Mike DeWine of Ohio complained to Hemingway that the military was using a “horribly slow process” to decide which detainees to put on trial, which to keep, and which to let go.
In his reply, Hemingway said that until military interrogators finished questioning a detainee and decided he had no more information to provide, they didn’t turn him over for possible trial before a military commission.
Sen. Jeff Sessions, R- Ala., expressed impatience at Democrats who called for more legal rights for detainees. He said the newly constructed facility at Guantanamo was on “a beautiful site” and “would make a magnificent resort.”
As for the detainees held there, “some of them need to be executed,” Sessions said.
Alleged torture in Egypt
One witness who testified before the committee, Chicago attorney Joseph Margulies, represented a Guantanamo detainee named Mamdouh Habib.
Margulies said Habib had been seized in Pakistan by police who turned him over to U.S. custody. The U.S. government sent Habib to Egypt where, Margulies said, he was tortured. Later he was sent on to Guantanamo.
Eventually after a Washington Post story detailed the torture allegations, the Bush administration released Habib.
The Defense Department’s Combatant Status Review Tribunal (CSRT), which provides a panel of military officers to assess each detainee’s case, is “a sham,” Margulies said.
“The CSRT relied on Mr. Habib’s statements given in Egypt to support its conclusion that he was an enemy combatant,” Margulies said. “Any process that relies on information secured in this way (through torture) is just not worthy of American justice.”
The most adamant defender of the Bush administration at Wednesday’s hearing was William Barr, who served as attorney general from 1991 to 1993, during the George H.W. Bush presidency.
“There’s nothing punitive about it, this is not a legal proceeding, there’s no need to bring charges, they are being held because they were identified on the battlefield as threats to our forces,” said Barr. “The Supreme Court cases say that foreigners outside the United States with no connection to the United States do not have due process rights.”
But what Barr did not mention is that in Rasul v. Bush, decided last June, the Supreme Court said that detainees at Guantanamo had a right to a habeas corpus hearing before a federal judge.
Comparison to World War II
Barr noted that during World War II, over 400,000 German, Italian and Japanese prisoners of war were held in camps in Utah, Texas and Arkansas.
“We seized a lot of Eastern Europeans and Asians who had been fighting in the Soviet Army, then captured by the Germans and conscripted into forced labor battalions” by the Nazis. Once captured and in the United States, many of them claimed that they weren’t really German soldiers and ought to be set fee.
“They didn’t get into U.S. courts, they didn’t get lawyers, they didn’t get hearings as to ‘are you a member of the Wehrmacht or not?’ They were detained until the end of hostilities,” Barr said.
He contended that the CSRT process created by the Bush administration was more than sufficient.
“I hear a lot of pontificating about the Geneva Convention, but I don’t see what the issue is.” Barr added. “The Geneva Convention applies to signatory powers. Al Qaida hasn’t signed it. They are not covered by the Geneva Convention.”