WASHINGTON – The Bush administration likely will have to extend rights to terror suspects at the U.S. military prison in Guantanamo Bay, Cuba, that it has denied them for years, after the Supreme Court invalidated the government’s system of military trials and ruled that the detainees must be treated according to international standards, officials and experts said Thursday.
Senior administration officials acknowledged that the ruling scuttled their plans to put as many as 80 detainees through administration-crafted “military commissions” – with extremely limited rights – and said it is unclear how they will respond. The decision in Hamdan v. Rumsfeld sent officials scrambling to evaluate options for the 450 detainees at Guantanamo Bay, some of whom have been held for more than four years without trials.
The choices, experts and government officials said Thursday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop a new set of rules to comply with the court’s decision.
The administration also could ask foreign governments to try the more than 150 prisoners it considers hard core terror suspects. The rest are likely to be returned to their home countries for further detention or release.
But if the United States decides it wants to hold the trials, detainees likely would gain more access to the evidence against them and the right to be present for much or all of the proceedings – both of which were denied in some circumstances under the military commission rules, the experts and officials said.
The court did not rule on whether Guantanamo Bay should be closed, nor did its ruling affect operations at the facility. Military officials said Thursday that scheduled military commissions hearings for 10 suspects have been indefinitely suspended.
Retired Army Gen. Barry McCaffrey, a professor of international affairs at the U.S. Military Academy who visited Guantanamo Bay last week, said the military commissions were destined to fail. The government instead should have used military courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights, he said.
“We put ourselves in an unneccessary legal mess from the beginning, and now we’ve gotten ourselves in such a mess legally and politically, there’s no easy solution,” McCaffrey said Thursday. “The UCMJ is the only way to go forward.”
Senior members of the Senate Armed Services Committee on Thursday vowed to quickly develop new legislation to govern military trials for terror suspects, announcing just hours after the court’s ruling their intent to hold hearings this summer and develop law by September. Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, said he plans to re-introduce legislation next month that would set out provisions for military commissions.
Senior administration officials, declining to be identified on a teleconference call with reporters Thursday, said they plan to work with Congress but are not ruling out anything.
Several officials said the U.S. federal courts are too limiting, in part because the strict rules of evidence could cause problems in cases where suspects were arrested by a foreign government, held for years, transferred without critical evidence and need witnesses who are difficult if not impossible to find.
Human rights groups hailed the decision as a major victory for the rule of law in America. The ruling appeared to grant detainees certain protections under the Geneva Conventions Common Article III, which could require the U.S. government to treat all detainees in the war on terror – whether they are held in the U.S. or abroad, or in secret facilities operated by the CIA – according to international standards.
“Just because you’re a president at war doesn’t mean the law ceases to exist,” said Jumana Musa, a lawyer at Amnesty International. “The best-case scenario now is that they charge the detainees under an established system of law. If they’re not going to charge them, they need to release them.”
The State Department has sought to transfer all but the most dangerous detainees to their countries of origin. But this has proved problematic for several reasons, said Pierre Prosper, the former Ambassador at Large for War Crimes, who spent most of his tenure traveling the globe to work out such transfers.
“Some countries had reservations about inheriting the security risk that the detainees posed,” Prosper said. Others did not have the secure prisons and professional guards necessary to assure U.S. authorities that they would remain in custody.
John Bellinger, legal adviser to Secretary of State Condoleezza Rice, said earlier this week that relocation efforts continue to this day, especially for about 300 detainees from Afghanistan, Saudi Arabia and Yemen who comprise about two thirds of Guantanamo Bay’s population.
“We want to get out of the Guantanamo business if we can,” Bellinger said.