What To Do About Guantanamo?

By Julie Donnelly on Friday, July 14, 2006.

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Members of Congress have set out to devise a new judicial process for detainees currently held at the US base in Guantanamo, Cuba.

Last month, the US Supreme Court decided that the Bush Administration's military tribunals were unconstitutional.

And the decision has led the Pentagon's admission that detainees are entitled to protections guaranteed by the Geneva Conventions.

NHPR Correspondent Julie Donnelly reports on how House lawmakers are starting to grapple with the issue.

The US Supreme Court decision in Hamdan versus Rumsfeld was a blow to the Bush Administration.

But New Hampshire Congressman Jeb Bradley, who sits on the Armed Services Committee, says he and his colleagues are taking it in stride.

"The Supreme Court decision reminded us, just like Senator McCain's amendment, which I supported, banning torture reminded us, that there are standards that we have to adhere to"

The sticky part for Bradley is deciding just what those standards should be.

After all, the war on terror is a new kind of war.

The combatants don't wear uniforms, swear allegiance to a nation, or follow a traditional chain of command.

And so for some, all of their actions could be considered war crimes.

That was one possibility discussed at a House Armed Services Committee hearing on the subject.

The congress could come up with a judicial process that looks very much like the United Nations Tribunals that tried suspects in Kosovo or Rwanda.

But there is another idea afoot.

Retired Rear Admiral John Hutson, Dean of Franklin Pierce Law School testified at the hearing.

The former Navy Judge Advocate-General thinks the US should use the court martial process governed by the Universal Code of Military Justice.

"it's true that the UCMJ has historically been used to protect Americans, and to prosecute them when necessary, but there could be changes to it to apply to this situation"

The universal Code of military Justice has rules of evidence that are similar to a civilian court.

Many in Congress argued the proposal would be impractical in a time of war.

Admiral Hutson acknowledges it would be difficult, but says that having no rules of evidence at all - is equally untenable.

"I don't see how the United states can say - you are guilty, and we can't tell you why you're guilty, but someone says your guilty and we can't tell you who"

Both the House and the Senate will be grappling with finding a middle ground.

Lawmakers are searching for a process that protects detainees rights enough to pass judicial muster, but which protects classified information during a time of war.

But the fact remains that the vast majority of the one thousand detainees kept at Guantanamo, have been held for years without being charged.

Since the supreme court decision, Democrats are making renewed calls for the base to be closed.

But Congressman Jeb Bradley says that option is not currently on the table.

"well, it's interesting that the supreme court did not suggest, not did any of the witnesses there today suggest, that guantanamo should be closed. In fact all of the panelists, including admiral hutson who was not representing the administration, indicated that we have a right to detain those who might be threatening our country or other countries."

New Hampshire's second district Congressman Charles Bass agrees that there is no way to set a timetable for closing the base at this time.

"it needs to exist so long as there are induividuals that threaten the national security of the united states and whose disposition cannot be resolved, and that may be next week, that may be next year or that may be five years from now"

But international furor over the base, while strong now, would surely intensify if detainees are to be held without charge for several more years.

And members of congress on the House armed services committee did express concern for how the international community - and history - would judge America's treatment of detainees.

There is one reason in particular that Congress wants to get the judicial process right.

It might someday be used to try Osama Bin Laden.

For NHPR news, I'm Julie Donnelly in Washington.