First step for trials at Guantanamo

A panel takes first step to restore habeas corpus. But that won’t help resolve how to weed out the dangerous detainees from the rest.

By David G. Savage

A Senate panel took the first step Thursday toward again giving foreign prisoners held at Guantanamo Bay, Cuba, the right to go to court and seek their freedom.

On a mostly party-line vote of 11 to 8, the Democratic-controlled Judiciary Committee said it would restore the right of habeas corpus that had been taken away in recent years by the Bush administration and the Republican-controlled Congress.

“Habeas corpus was recklessly undermined in last year’s legislation,” said Sen. Patrick J. Leahy (D-Vt.), the committee’s chairman, referring to the Military Commissions Act. “I hope the new Senate will reconsider this historic error and set the matter right.”

Sen. Arlen Specter (R-Pa.), the bill’s cosponsor, was the only Republican to vote for it.

By locating the prison offshore, on the base in Cuba, Bush’s lawyers hoped to hold, question and prosecute suspected terrorists and foreign fighters without interference from the nation’s courts.

However, the Supreme Court ruled in 2004 that the base at Guantanamo was under U.S. control, and therefore was subject to the reach of American law, including the right to habeas corpus.

Last year, the administration won legislation in the GOP-controlled Congress which overturned that ruling. It said “no court, justice or judge” could hear a claim from a foreigner designated by the government as an “enemy combatant.”

Democrats are seeking to remove that ban. But doing so does not help settle a key issue: how to decide which of the detained men are dangerous and which should be sent home. The right to habeas corpus represents a passage into court, but does not say what, if anything, the detainees will win.

From the start, the Bush administration has said it was unwise and unrealistic to have federal judges decide the fate of hundreds of foreign nationals captured in Afghanistan, Pakistan or elsewhere in the Mideast.

But civil libertarians have said it was unfair and inhumane to imprison the men for years without a chance to plead their case before an independent judge.

Under the current system, the Guantanamo detainees are entitled only to a cursory hearing before a three-member panel of military officers.

Separately, the administration is moving ahead with plans to hold trials for a small number of the detainees in military commissions. Those trials were put on hold this week when two military judges said the men facing prosecution had not been properly categorized as “unlawful enemy combatants.”

The Pentagon has not announced what it will do in response to the rulings.

Last month, Sen. Tom Harkin (D-Iowa) introduced a bill to close the prison at Guantanamo and transfer the remaining 385 prisoners to the military prison at Ft. Leavenworth, Kan. Among the prisoners are several Al Qaeda leaders, including Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks.

Harkin’s bill would require the administration to charge each of the prisoners with a crime or return them to their home country.

“Closing this facility is our single best opportunity to rally our allies in a more effective fight against terrorism and reduce the risk to Americans traveling abroad,” Harkin said in introducing the bill.

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