WASHINGTON—The fallout over the Bush administration's alleged mistreatment of prisoners at Guantanamo Bay prison camp worsened Wednesday as Republicans and Democrats on the Senate Judiciary Committee said Congress must intervene to resolve the fate of the 520 captives.
But the Justice Department took a hard line in response, saying the terror suspects posed such a large risk to the nation that they could be held for the rest of their lives at the Cuban installation.
The prospect of such prolonged imprisonment coupled with the slow pace of "crazy quilt" court decisions on prisoner issues prompted Sen. Arlen Specter, R-Pa., the judiciary chairman, to urge Congress to take up the "touchy subject" of instructing judges to speed up decisions of Guantanamo cases.
About 200 of the detainees have filed petitions in federal court challenging their captivity.
Over recent days, administration officials have given mixed signals about Guantanamo's future.
Attorney General Alberto Gonzales, on a trip to Europe, defended the prison camp Wednesday but said, "We have been thinking about and continue to think about whether or not this is the right approach, is this the right place, is this the right manner to deal with unlawful combatants."
Sen. Lindsey Graham, R-S.C., a former Air Force lawyer and a member of the judiciary committee, said it was urgent for the Bush administration and Congress to "help define what's going on in Guantanamo and better define what an enemy combatant is."
The administration decided soon after the Sept. 11, 2001, attacks to hold hundreds of prisoners from Afghanistan and elsewhere as "unlawful" enemy combatants—suspected terrorists who don't deserve Geneva Convention protections.
Legal battles stemming from the executive branch's decisions have played out in the federal courts for three years without a resolution. But Congress has never used its constitutional authority to set the rules for detentions and interrogations.
That must change, Graham said. "Because if we don't have the buy-in across the country and all three branches of government (on Guantanamo), we're going to lose this war if we don't watch it."
In the past week, other Republican senators—Mel Martinez of Florida and Chuck Hagel of Nebraska—said they were troubled by the prospect of long detentions at Guantanamo with no resolution in sight.
But Wednesday's long, contentious hearing showed that the committee is seriously divided over these issues. Sen. Patrick Leahy of Vermont, the ranking Democrat, called Guantanamo "an international embarrassment" and "a festering threat to our security."
Two Republicans on the committee, Sen. Jeff Sessions of Alabama and Sen. John Cornyn of Texas, said a congressional airing of prisoner issues and reports of abuse could endanger U.S. troops.
U.S. military and Justice Department officials took a hard-line position against changing the detention system and legal structure that have been set up since 2001, including military commission trials that were halted by a federal judge over a lack of due process.
"America is at war," Air Force Brig. Gen. Thomas Hemingway, legal adviser for the military commissions, told the committee. "This is not a metaphorical war; it is as tangible as the blood, the dust and the rubble that littered the streets of Manhattan on Sept. 11."
Hemingway and administration officials said all Guantanamo detainees were combatants who could be held as long as the war on terrorism continues. They described it as a military and intelligence necessity that had nothing to do with criminal law.
"Does that mean it's the administration's position that the folks we consider a danger, 550 or so folks in Guantanamo, will be held in perpetuity?" asked Sen. Joseph Biden, D-Del.
J. Michael Wiggins, deputy associate attorney general, responded: "It's our position that legally they could be held in perpetuity."
Wiggins also said a system of annual review tribunals at the prison will help decide if more Guantanamo prisoners should be released because they no longer pose a threat.
Several senators complained that the Defense Department has been reluctant to give exact numbers on the Guantanamo population. Responding to a letter from Sen. Dianne Feinstein, D-Calif., Deputy Assistant Secretary of Defense Matthew Waxman wrote that there are now "approximately 520" detainees at the camp.
He said that as of April, 167 prisoners had been released and 67 had been transferred to the custody of other countries.
Senators also quizzed officials and defense attorneys about the military commissions, set up with great fanfare three years ago as a way of trying terrorists outside the federal courts and military courts martial.
But by last year only four detainees were charged in that system, and a federal judge halted trials in November, ruling they lacked due process. The government appealed that decision, and an appeals court in Washington is expected to rule soon on the issue.
"This just seems to be a horribly slow process," said Sen. Mike DeWine, R-Ohio.
Hemingway defended the process. "Military commissions are the appropriate forum to preserve safety, preserve national security and provide for full and fair trials."
Navy Lt. Cmdr. Charles Swift, a military lawyer defending one of the Guantanamo detainees, called the military commissions "a tremendous failure" and an "exercise in futility."
He said traditional courts martial could handle war crimes cases and preserve a defendant's right to confront all evidence used against him, which military commissions don't do.
Swift also said military prosecutors originally made access to his Yemeni client, Salim Ahmed Hamdan, dependent on his ability to secure a guilty plea. Hemingway disputed that complaint.
(c) 2005, Knight Ridder/Tribune Information Services.
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