In its first attempt to develop laws governing the treatment of detainees at Guantanamo Bay and other U.S. military prisons, Congress Wednesday began to travel the tortuous road between the argument that "enemy combatants" have no rights, and rising concerns that endless detention is unethical and creates a powerful recruiting tool for terrorists.
Senate Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican, called on Congress to define detainees’ legal rights as a substitute for what he termed the "crazy quilt" system now in effect.
The committee heard testimony from witnesses representing the Department of Defense and the Justice Department, a former U.S. attorney general, a military lawyer who represented a Guantanamo detainee since freed, and other legal authorities.
In a May 25 report that infuriated the administration, Amnesty International characterized of the U.S. detention facility at Guantanamo Bay as "the gulag of our times."
Should Congress pass legislation governing detainees held on suspicion of being terrorists, they would effectively regulate powers now claimed by the president. Sen. Specter said today’s hearing was the first of many to be held on this subject.
Sen. Patrick Leahy of Vermont, the senior Democrat on the committee, called Guantanamo Bay "an international embarrassment to our nation, to our ideals, and [it] remains a festering threat to our security."
Military and Justice Department witnesses claimed they had gone to extraordinary lengths to protect the rights of prisoners and to process their cases. However, they did not specify what rights these detainees have.
A more extreme view was expressed by former Attorney general William Barr, who served in the first Bush administration from 1991-1993. He told the panel that prisoners detained as enemy combatants at Guantanamo and elsewhere "have no rights and are not entitled to due process," as enjoyed by U.S. citizens.
Noting that hearings before military tribunals were currently being delayed because of litigation pending in federal courts, Pentagon and law enforcement officials defended current practices at the U.S. military prison camp.
Rear Admiral James M. McGarrah, who monitors the "enemy combatant" detention program for the U.S. Navy, told the Committee that of the 558 detainees given hearings at Guantanamo, 520 were "properly classified" as enemy combatants and of the remaining 38, 23 have been released so far.
Michael Wiggins, a deputy associate attorney general, told the committee that each Guantanamo detainee was given a formal hearing before a review panel to ensure they were all properly classified as enemy combatants.
The hearing took place against the backdrop of increasing calls to shut down the Guantanamo facility because of the image problems created for Washington by growing reports of U.S. abuse of terror war prisoners at the camp.
Committee member Sen. Joseph Biden, a Delaware Democrat who has called for the shutdown of Guantanamo Bay, said, "We are doing real badly" in the eyes of the world. "Guantanamo is a disaster."
"If we can hold people until the end of hostilities, when does the conflict end?" Biden asked. "Can we hold people forever?"
The Justice Department representative responded, "Enemy combatants can be held until the war is over."
Biden has introduced legislation to create a nonpartisan independent committee to investigate the treatment of prisoners captured in the war on terror.
But Sen. Russ Feingold, a Wisconsin Democrat, told the committee the solution "is not closing Gitmo," the military shorthand for the Naval Base at Guantanamo Bay, Cuba.
He questioned the legal basis for holding detainees as enemy combatants for years when the Justice Department’s definition of an "enemy combatant" did not exist before the summer of 2004.
He also questioned whether the government would consider evidence obtained as a result of torture. Justice Department representative Wiggins responded, "We do not torture prisoners."
The Supreme Court ruled in 2004 that Guantanamo detainees are entitled to due process and proper judicial hearings. Following that ruling, the Defense Department established the current system of military commissions to review each case and military tribunals to adjudicate them. But to date, only four cases have been referred for trials before the tribunals.
President George W. Bush last week appeared to leave open the possibility that the prison would be closed, but Defense Secretary Donald Rumsfeld said Tuesday he thought the prison would be needed for years to come. Rumsfeld said the military has no other facility that could accommodate that many prisoners.
Air Force Brig. Gen. Thomas L. Hemingway told the panel that detainees are being held "humanely." Asked how long they could be held, he said: "I think we can hold them as long as the conflict endures."
Sen. Leahy questioned the administration’s assertion that the prison camp was an essential part of the U.S.-led war on terror.
"All of us know this war will not end in our lifetime," Leahy said.
Sen. Edward M. Kennedy, Democrat of Massachusetts, said the treatment of prisoners at Guantanamo stained the nation’s reputation on human rights, inflamed the Muslim world, and had become "a powerful recruiting tool for terrorists."
The panel also heard from Navy Lt. Commander Charles Swift, a Navy lawyer for a Guantanamo detainee Salim Ahmed Hamdan. Swift said he was ordered to represent Hamdan only "for purposes of obtaining a guilty plea."
Instead, he took the case to a U.S. federal court, which ruled that Hamdan had not received a fair hearing. When news of the court action appeared in a page-one story in the Washington Post, "within five days my client was released," he said.
