Congress is likely to step into the operation of the Guantanamo Bay detention center with legislation on how the U.S. should legally categorize an unorthodox enemy.
Fitting the enemy in the war on terror into the proper niche is challenging. Al Qaeda terrorists do not wear a uniform. They target civilians and never signed the Geneva Convention governing the treatment of wartime detainees.
U.S. officials say al Qaeda members make up the majority of the 520 inmates at Camp Delta in Cuba and include terrorist leader Osama bin Laden’s bodyguards and one man who authorities suspect was supposed to be the 20th hijacker on the September 11 flights. The other inmates are suspected of being Taliban members.
The Bush administration set what it thought would be a unilateral and a long-lasting policy after the September 11 attacks. It deemed terrorists caught in the Afghanistan-Pakistan region as enemy combatants entitled to trial only by military commissions.
But those plans began unraveling after accusations of detainee mistreatment and a Supreme Court ruling that detainees had a right to court hearings. The lower federal courts are wrestling with the ruling’s ramifications, and the commission-style trials have been put on hold.
Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, convened the first hearing last week on legal issues at the Guantanamo prison. The witnesses provided the first in-depth public discussion of how the Bush administration views al Qaeda detention in the long term. In the process, officials offered a vigorous defense of holding al Qaeda members rather than giving them another chance to kill Americans.
“The detention of enemy combatants serves the vital military objective of preventing captured combatants from rejoining the conflict and gathering intelligence to further the overall war effort and to prevent additional attacks against our country,” said J. Michael Wiggins, deputy associate U.S. attorney general. “Some of those individuals are being held at Guantanamo Bay.”
Air Force Brig. Gen. Thomas L. Hemingway, who is chief legal adviser to the appointing authority for the military commissions, added, “I think that we can hold them as long as the conflict endures. But we have … a very detailed process for releasing them if they no longer present a threat.”
Sen. Patrick J. Leahy, Vermont Democrat and a strong advocate for detainee rights, asked, “Well, we now have a government in Afghanistan, yet the conflict continues. Is that what you’re saying?”
Gen. Hemingway replied, “The conflict is not with the government of Afghanistan. The conflict is with a nonstate organization.”
Another Democrat, Joseph R. Biden Jr. of Delaware, worried about how the Muslim world viewed Guantanamo, noting, “We have to deal with the 1.2 billion Muslims in the world. And guess what, General? We’re doing real badly. We’re doing real badly on that part of the war. Matter of fact, it’s a disaster.”
Part of the screening process involved conducting hearings for each inmate to determine whether he was an enemy combatant. The panels last spring confirmed that all but 38 fall into that category. The Pentagon is releasing the 38, but has had trouble finding countries to take 15 of them.
So far, the Pentagon has released more than 200 detainees. About 10 have resurfaced on the battlefield in Afghanistan and been killed or captured, administration officials said.
Sen. Lindsey Graham, South Carolina Republican, endorsed the idea of using some type of stress to induce captured terrorists to talk.
“We need to look at a way to standardize that because I worry about some of our own troops getting prosecuted under our own laws if we don’t have standardization,” he said.