Guantanamo in Congress’ Court Now

Key lawmakers moved Friday to begin creating a military justice process to determine the fate of Guantanamo detainees, a day after the Supreme Court wiped out the special tribunals established by the Bush administration.

Under the justices’ ruling, Congress -- which has largely stayed on the sidelines in shaping the war on terrorism -- must take the lead role in implementing the most important legal decision affecting terrorism suspects since Sept. 11.

“I think we are under duty to move very, very promptly, because these people have been detained a long time,” said Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). “The court has told us what to do.”

Members of Congress, and especially its GOP leadership, will have to figure out whether they must grant detainees more rights and protections than they currently have, or whether they can legislatively duplicate the restrictive approach the Bush administration prefers.

The debate is expected to dominate the congressional agenda for the coming months, and is likely to fuel a partisan confrontation over whether the United States has gone too far on some fronts in conducting its war on terrorism.

Specter has scheduled hearings on the detainee issue for July 11, the first day Congress is back in session after the Fourth of July recess. The House Armed Services Committee also announced hearings for this month; other relevant committees are expected to follow.

Thursday’s decision in Hamdan vs. Rumsfeld said the tribunals established by the Bush administration for detainees at the military’s Guantanamo Bay, Cuba, facility do not comply with existing law. The high court wrote that it is up to Congress to create a judicial review process for the detainees that comports with the Uniform Code of Military Justice and the Geneva Convention.

But the decision left several questions that now fall to Congress to answer.

One is whether the administration’s system of military tribunals -- or commissions, as the Pentagon calls them -- would be legal if formally approved by Congress.

Simply asking Congress to OK the policy -- which limits detainees’ access to the evidence against them, permits testimony and evidence obtained by coercion, and provides limited opportunity for review or appeal -- appeared Friday to be the approach favored by the White House.

“It looks like there’s considerable interest in Congress in ... making sure that we can proceed with military commissions and bring to justice the people who are held at Guantanamo,” White House spokesman Tony Snow told reporters en route to Memphis, Tenn., with the president aboard Air Force One.

Another option open to Congress is to pass a law stating that the Uniform Code of Military Justice, which provides many more rights and legal safeguards for defendants, applies to the Guantanamo detainees.

“It’s clear the court wants us to operate under the Uniform Code of Military Justice,” Sen. John McCain (R-Ariz.) said on NBC News.

“I’m confident we will do that, and quickly.”

A third option would be to create an entirely new system specifically for prisoners held as part of the administration’s global war on terrorism.

That is closer to the approach favored by Specter, who has been working on legislation that would create two types of special tribunals. One would determine detainees’ legal status, including whether they are properly being classified as enemy combatants. The second system would establish rules and procedures for trying detainees accused of war crimes.

Specter’s committee held a hearing on the issue of the Guantanamo detainees last year.

“The Department of Defense had been trying to do as little as possible. They had delayed action on detainees for a long period of time while this case has been percolating,” Specter said. “We have addressed not only those who are going to be charged with criminal offenses, but also the detainees who are enemy combatants.”

Another set of questions concerns whether the Supreme Court ruling has ramifications for other administration policies, such as the detention of prisoners by the U.S. elsewhere in the world, as well as the legality of the president’s terrorism surveillance programs.

Specter said he thought the Hamdan decision could call into question the legality of a number of Bush administration policies.

The White House has argued that the president’s inherent authority as commander in chief -- along with Congress’ 2001 authorization to use military force against terrorists -- grant him extensive powers to decide how to conduct the war on terrorism, including how to treat detainees and what kinds of surveillance are necessary.

“The decision that the president lacked the authority to establish the military commissions makes it obvious that the conclusion of the Supreme Court is that there is no inherent authority -- an inference and a proposition which may have some weight as we consider collateral matters, for example, on the electronic surveillance” conducted by the National Security Agency, Specter said Thursday.

Though the Supreme Court decision may be a blow to the president’s policies, it may benefit his party politically -- permitting candidates in November elections to talk tough about fighting terrorists and portray Democrats as weak.

For instance, a memo circulated Friday by the office of House Majority Leader John A. Boehner (R-Ohio) accused Democrats of welcoming a Supreme Court decision granting “special privileges to terrorists.”

“There is a clear choice between Capitol Hill Democrats who celebrate offering special privileges to violent terrorists, and Republicans who want the president to have the necessary tools to prosecute and achieve victory in the global war on terror,” the memo said.

In response, Democrats have begun to develop their own line of argument, asserting that the Hamdan case raises doubts about the administration’s competence on terrorism and protection of the U.S.

“The American people increasingly question this administration’s credibility when it comes to national security. They have promulgated reckless policies that endangered the country and destroyed America’s reputation around the world,” said Jim Manley, spokesman for Senate Minority Leader Harry Reid (D-Nev.) and director of the Senate Democrats’ “war room” for responding to Republican charges.

“The chickens have finally come home to roost,” he said.