The Bush administration likely will have to extend rights to terrorism suspects at the U.S. military prison at Guantanamo Bay, Cuba, that it has denied 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 yesterday.
Senior administration officials acknowledged that the ruling scuttles their plans to put as many as 80 detainees through administration-created "military commissions" -- with extremely limited rights -- and said it is unclear how they will respond. The 5 to 3 ruling 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 trial.
The choices, experts and government officials said yesterday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop new rules to comply with the court's decision.
The administration could also ask foreign governments to try the more than 150 prisoners it considers hard-core terrorism 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 probably 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, and its action does not affect operations at the facility. Military officials said yesterday that scheduled military commission hearings for 10 suspects have been suspended.
Retired Army Gen. Barry R. 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. He said the government should have used courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights.
‘An unnecessary legal mess’
"We put ourselves in an unnecessary 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 yesterday. "The UCMJ is the only way to go forward."
Senior members of the Senate Armed Services Committee yesterday vowed to quickly develop legislation to govern military trials for terrorism suspects, announcing just hours after the court's ruling their intent to hold hearings and develop law by September. Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, said he plans to reintroduce legislation next month that would authorize military commissions.
Sen. Lindsey O. Graham (R-S.C.) said he also plans legislation. "We are stronger as a nation when all three branches buy into the legal framework," he said.
Graham said it would be "chaos" to try such detainee cases in criminal courts, arguing that the Sept. 11, 2001, attacks should be treated as acts of war and not crimes to be prosecuted in civilian courts.
Senior administration officials, requesting anonymity during a teleconference call with reporters, said they plan to work with Congress but are not ruling out anything.
"There's no particular direction that we're heading in right now except to review the decision and consider all options that would be available to us and Congress," one official said.
Several officials said the U.S. courts are too limiting, in part because the strict rules of evidence could cause problems in cases in which suspects were arrested by a foreign government, held for years and transferred without critical evidence -- and whose trials would require the presence of witnesses who are difficult, if not impossible, to locate.
Many experts and human rights groups favored the use of the UCMJ, which they described as transparent and fair.
"You could pass legislation that authorizes military commissions that look essentially like military courts-martial and that would be consistent with the decision, but why do that when we already have courts-martial that are consistent with the decision?" asked Tom Malinowski, Washington advocacy director for Human Rights Watch.
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 3, which could require the U.S. government to treat all detainees in the war on terrorism -- whether they are held in the United States 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."
Unlike evidence in most criminal or military court proceedings, the bulk of the government's evidence against suspected terrorists at Guantanamo Bay can be circumstantial and classified. The cases against many Guantanamo Bay detainees may rest on statements gleaned from interrogations of prisoners throughout the world, as well as from intelligence collected by the CIA and others.
‘Overriding concern’
Safeguarding such information is a principal concern of the U.S. government. "In most situations, that's always going to be the overriding concern," said Robert McNamara, a CIA general counsel until 2001. "You shouldn't have to decide to let someone go to protect sources and methods."
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 State Department's 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.
In other cases, particularly in Europe, it would be illegal to hold detainees transferred from Guantanamo Bay unless they could be charged with a specific crime. In some cases, the U.S. military is unwilling to give European authorities the classified evidence they would need
John B. Bellinger III, legal adviser to Secretary of State Condoleezza Rice, said this week that relocation efforts continue, especially for about 300 detainees from Afghanistan, Saudi Arabia and Yemen, who make up about two-thirds of Guantanamo Bay's population.
"We want to get out of the Guantanamo business if we can," Bellinger said.
Staff writers Dana Priest and Michael Abramowitz, and researcher Julie Tate contributed to this report.
