Now that detainees held by the U.S. at Guantánamo Bay, Cuba, have the right of habeas corpus, members of one congressional body are asking, howwill that work?While the Supreme Court, with its decision in Boumediene v. Bush, granted prisoners held as enemy combatants at Guantánamo the right to their day in court, many questions remain unanswered -- including whether the Boumediene decision applies to "enemy combatant" prisoners held by the U.S. in facilities other than the famed prison camp in Cuba. The Commission on Security and Cooperation in Europe, an entity of Congress also known as the Helsinki Commission, yesterday asked the guidance of three experts in a packed hearing
room.Both Sen. Ben Cardin, D-Md., and Rep. Alcee Hastings, D-Fla., who co-chair the commission, spoke of the damage done to the U.S. image among its European allies by virtue of the fact of Guantánamo, a place where prisoners have been subject to indefinite detentions and interrogation methods classified as torture in international law. Other commissioners spoke of "getting an earful" about U.S. detention and interrogation policies when they travel abroad on commission business."n light of the latest defeat for the administration's detention policies at the hands of the Supreme Court…" said Cardin, "I think it is high time to stop tinkering with a failed system and re-open entirely the question of how we handle terrorism suspects.""The fact that Gitmo is still open is testament to the genuine challenges we face in relocating its residents…," Hastings said, "but it also speaks to a lack of political leadership in fixing the problems there."The three witnesses who appeared before the commission concurred with Hastings' conclusion that Guantánamo should be closed. The witness list need not have been so stacked, Hastings implied, noting that the commissioners invited representatives from the Departments of Justice, Defense and State. "…in light of the vital implications of this subject for our country," he said, "I sorely regret the absence of administration witnesses." The commission's membership includes representatives from Defense and State, but neither attended the hearing.Much of the argument against granting full rights under U.S. and international law to those detained as enemy combatants centers on the possibility of that prisoner's "return to the battlefield" if he is released. While that's an acknowledged risk, said Jeremy Shapiro, research director for the Brookings Institution's Center on the United States and Europe, there's more to consider."The question of whether a returned detainee poses a danger needs to be weighed against the danger that the existence of Guantánamo is doing every day in creating recruits for terrorism," said Shapiro. "It is not simply the case that you will release somebody into a static pool of terrorists. The problem of Guantánamo, the image of Guantánamo, is creating in Europe and the world is, I would argue, on a daily basis adding to our terrorism problem."Matthew Waxman, now a Columbia Law School professor, served as the Pentagon's chief legal adviser on detainee issues, where he earned the ire of David Addington, the famed enforcer for Vice President Dick Cheney. Waxman's transgression? Insisting that Pentagon guidelines on detainee treatment incorporate language from the Geneva Conventions prohibiting cruel, humiliating and degrading treatment. At yesterday's hearing, he advised lawmakers not to seek an easy fix to a complicated problem."When I say that there's no simple and ready alternative, what I'm really getting at is there's no easy solution out there that's gonna take care of the whole problem on its own….," Waxman told the commission. "[R]ather than looking for a one-size-fits all solution, such as 'send them all to their home countries,' 'bring them all into the United States', 'prosecute them all,' the solution to Guantanamo
probably lies in a combination of all of those things."Then he added another option to add to the list, one he conceded was "controversial": "new legislation that might create what's sometimes called administrative detention or preventive detention authority -- to hold somebody inside the United States."Hmmm…I'm no lawyer, but I'm not sure how that would jibe with the whole rationale for habeas.Rounding out the panel was Gabor Rona, international legal director for Human Rights First, and former legal adviser for the International Committee of the Red Cross, which monitors the treatment of prisoners at Guantánamo. (See Brian's coverage of how Pentagon advisers and Guantánamo officials hoped to evade ICRC detection of cruel and inhumane practices used in prisoner interrogations there.)Rona took on the very notion of the "enemy combatant" and the standards -- which sounded unconstitutional to me -- of what constitutes "hostile acts" against the U.S."The definition of enemy combatant encompasses a huge swath of activities, many of which that have nothing to do with the battlefield -- associating with terrorists, for example," Rona explained. "So when the United States releases [an individual] and declares that they are no longer an enemy combatant, that doesn't mean that they had made the correct decision in the first place that this person had engaged in hostilities against the United States." In one case, Rona said, a detainee was deemed to have engaged in hostilities against the U.S. for having published an op-ed critical of "U.S. policies and practices."Rona also contended that no new legal architecture is needed in the face of the Supreme Court's decision. "If we continue to look for the perfect, we will never find a solution and it will continue to be the enemy of the good," Rona said. "The good is the federal criminal justice system."By the end of the two-hour hearing, the once-full room was more than half-empty. Even the two women from the anti-war group, Code Pink -- one sporting a spectacular, hot-pink hair ornament -- had made their exit before the closing gavel.