Guantanamo under steady fire

Inside of a week, a U.S. federal court, retired Gen. Colin L. Powell and two military judges assigned to the war-crimes tribunals here dealt serious blows to the Bush administration’s efforts to detain and prosecute terrorism suspects.

Some legal scholars and analysts predict more obstacles to trials for any of the 385 foreign prisoners at the U.S. military detention compound.

But others believe that the system could be salvaged with repairs to its rules and procedures and with reduction of the prisoner population to only those likely to face charges. Authorities have no plans to prosecute an estimated 300 of the prisoners.

“The government talks about [the Guantanamo prisoners] being the worst of the worst, but obviously not all of them are like that,” said Amos N. Guiora, a Case Western Reserve University law professor and director of the Institute for Global Security Law and Policy.

Guiora proposed that the U.S. government create a domestic court to try terrorism cases, one that would give defendants most of the U.S. constitutional protections of federal criminal courts, along with rights due prisoners of war as recognized by the Geneva Convention.

“Part of this process would imply the release of individuals who need not be there,” Guiora said. “At the end of the day, we should be left with just those who do pose a threat to national security.”

Guiora and others have argued that the Bush administration’s insistence that it has the right and responsibility to detain any foreigner it designates an enemy combatant for the duration of its open-ended war on terrorism has damaged the image of the United States abroad.

“The international community is very upset with the fact we’ve said we can hold a citizen of the world indefinitely without charges or trial,” said Scott Silliman, a retired Air Force colonel and judge advocate now heading Duke University Law School’s Center on Law, Ethics and National Security.

Silliman added that ignoring the international chorus of criticism could dissuade allies from contributing troops or support for the wars in Iraq and Afghanistan.

Jeff Addicott, another former military judge now heading the Center for Terrorism Law at St. Mary’s University in San Antonio, agrees that the number of detainees poses a public relations problem for the U.S. government that complicates efforts to prosecute the biggest security threats.

But he believes some of the blame lies with countries that have refused to take responsibility for their citizens here.

“We’ve got 80 people we’ve cleared for release and want to move out, but their governments won’t take them back,” Addicott said. Those detainees were made eligible for release or transfer during annual Administrative Review Boards.

Many of the others unlikely to be prosecuted may be rehabilitated and released once Guantanamo detention authorities judge them to pose no further threat to U.S. security, he said.

The main obstacle to bringing terrorism suspects to justice, Addicott said, was the disagreement between the United States and most other countries as to whether the war on terrorism should be governed by the laws of war defined by the Geneva Convention, which never envisioned nonstate combatants like those in Al Qaeda.

“We’re trying to fit a square peg into a round hole. We never used the laws of war in this kind of a situation,” Addicott said.

The commissions were put on indefinite hold this month when two military judges exposed a technical glitch in the jurisdictional rules that would require the Pentagon to reevaluate any potential defendant to determine whether he was an “unlawful alien enemy combatant” or a soldier in his national armed forces entitled to defend himself.

A Pentagon spokesman confirmed that the jurisdiction rulings and dismissal of charges against Salim Ahmed Hamdan, a former driver for Osama bin Laden, and Canadian Omar Khadr were being appealed.

The commissions’ appellate body has yet to be seated, though. Meanwhile, Defense Secretary Robert M. Gates has said nothing about how or whether he wants the commissions to proceed.

Powell, former Secretary of State and head of the Joint Chiefs of Staff during the Persian Gulf War, delivered damning criticism of Guantanamo when he told NBC’s “Meet the Press” last week that he would close the operations “not tomorrow, but this afternoon.”

In another blast at the administration’s handling of terrorism suspects, a panel of the U.S. 4th Circuit Court of Appeals ruled Monday that a foreign suspect arrested on U.S. soil has constitutional protections. The court ruled that Ali Saleh Kahlah al-Marri, a citizen of Qatar and Saudi Arabia and a legal U.S. resident, must be released from military custody, where he has been held without charges for four years.

The al-Marri decision was “a bombshell,” said Rebecca Dick, whose Washington firm represents several Guantanamo prisoners in habeas corpus appeals made after a 2004 Supreme Court ruling.

Those at Guantanamo aren’t U.S. residents, “but the same principles of justice apply,” she said.

Even if detainees eventually recover the habeas corpus rights stripped by the Military Commissions Act -- the Senate Judiciary Committee this month voted to restore that recourse -- “much of [the government’s] evidence was obtained under circumstances that preclude its use in any fair proceeding,” Dick said.

Several prisoners were being released each month late last year at a pace that would have emptied the detention center in about five years. But “the releases have nearly stopped” since the first of this year, Dick said.

Habeas attorneys believe the halt is due to the U.S. government’s insistence that the home countries detain their nationals to validate U.S. claims that it had grounds to jail them for the last five years.

Officials at the Pentagon and in the Joint Task Force that supervises the detention facility and interrogation operations contend they need to hold the prisoners to keep them from rejoining terrorist groups and attacking the United States again. They insist, though, that they don’t want to hold anyone longer than necessary.

Addicott noted that the Saudi government had spent millions to reeducate and settle about 65 citizens repatriated from Guantanamo -- a model, he said, for dissuading released detainees from rejoining Al Qaeda.

“If we see signs that these guys are abandoning their jihadist worldview, we would certainly want to move them to the status for release or transfer and start processing them out. Nobody wants to keep these people longer than we have to,” he said.

carol.williams@latimes.com