Global Policy Forum

By Charles Babington

Key lawmakers, alarmed by international condemnation of U.S. treatment of prisoners at the military prison in Guantanamo Bay, Cuba, said yesterday they will press Congress to intervene in detainee policies despite the Bush administration's claim that running the detention camp is the province of the executive branch and the military.

At a four-hour Senate hearing yesterday, several Democrats denounced the administration's practices at Guantanamo Bay, and some Republicans agreed that Congress has been too passive in allowing detainees to be held for years without trials or consultations with lawyers. Some senators objected when an administration official said detainees could be held at the prison forever. But others said criticisms of the prison camp might endanger U.S. military morale.

The Constitution "explicitly confers upon Congress" the power to define appropriate treatments for captured foreign suspects, said Judiciary Committee Chairman Arlen Specter (R-Pa.). Recent Supreme Court rulings have emphasized "that it's really the job of the Congress," said Specter, who chaired the hearing. "At any rate, Congress hasn't acted, and that's really what the focus of our hearing is today as to what ought to be done." Pentagon and Justice Department officials defended the administration, saying the approximately 520 detainees are not covered by legal protections afforded criminal defendants or prisoners of war. "Detention of enemy combatants serves the vital military objectives of preventing captured combatants from rejoining the conflict and gathering intelligence to further the overall war effort and to prevent additional attacks," said J. Michael Wiggins, deputy associate attorney general. Pressed by Sen. Joseph R. Biden Jr. (D-Del.) on how long an enemy combatant might be held without trial, Wiggins said, "It's our position that, legally, they can be held in perpetuity."

Pressure has mounted on Congress in recent weeks to address allegations of detainee abuse at the prison, opened in January 2002 at a Navy base on a U.S.-leased slice of Cuba. Amnesty International issued a report last month and its secretary generalcalled the camp "the gulag of our time," a reference to Soviet labor camps. Former president Jimmy Carter is among those who have called for the United States to close the facility. President Bush has left open that possibility, but he and Defense Secretary Donald H. Rumsfeld also have defended treatment of Guantanamo Bay captives and said the government must have a facility where it can hold terrorism suspects. Some detainees have complained about physical abuse and religious humiliation, though many claims are unverified. Rights groups have assailed the government for holding some prisoners for more than three years without trial.

Several senators said U.S. detention policies are undermining the nation's moral authority and inflaming the Islamic world. The situation "is an international embarrassment to our nation and to our ideals, and it remains a festering threat to our security," said Sen. Patrick J. Leahy (Vt.), the Judiciary Committee's top Democrat. Sen. Edward M. Kennedy (D-Mass.) said abuses at Guantanamo Bay "have shamed the nation in the eyes of the world and made the war on terror harder to win. In many parts of the world, we are no longer viewed as the nation of Jefferson, Hamilton, and Madison. Instead, we are seen as a country that imprisons people without trial, and degrades and tortures them. Our moral authority went into a free fall."

Most of the detainees were captured in Afghanistan, although some were apprehended in Bosnia, the United States and elsewhere, said New York University law professor Stephen J. Schulhofer, an authority on anti-terrorism law and one of the witnesses at yesterday's hearing. Criticizing policies that have prevented detainees from seeing lawyers or challenging their imprisonment for months or years, Schulhofer said: "Global terrorism poses unique challenges, but when it comes to detention, interrogation and trial, we found no reason to think that the traditional institutions used in all prior wars aren't up to the task." Brig. Gen. Thomas L. Hemingway, a Pentagon legal adviser, disagreed. "We have built a whole judicial system to try these cases" because the detainees are "unprivileged belligerents" covered by neither the Geneva Conventions nor U.S. criminal statutes, he told the committee. No trials have been completed for Guantanamo Bay detainees, he said, partly because of "the exercise of the defense counsel and the detainees' rights in federal courts."

"Well, those pesky rights," Leahy said sharply. A federal judge has ruled the military trials planned by the government illegal, placing them on hold while the Bush administration appeals. Leahy said Congress must intervene in Guantanamo Bay policies. "From the start, the administration's answer to every question about our detention policies has been, 'Trust us.' " Now, he said, "the one thing we know for certain is that any trust we may have had was misplaced." A small number of detainees have been returned to their home countries from Guantanamo Bay, officials said, and about a dozen returned to battle U.S. forces. Attorney General Alberto R. Gonzales said yesterday in Brussels: "We can't release them and have them go back to fight against America." He said Bush would decide when the facility is no longer necessary. "There will, of course, be an end," Gonzales said.

Sen. Lindsey O. Graham (R-S.C.) said, "There is not enough buy-in by the Congress to what's going on at Gitmo. There is a buy-in on my part, and I think many others, that we need this place desperately to protect us in this war on terror, to hold people accountable, to get good intelligence." He suggested that Congress develop "some statutory provisions defining enemy combatant status and standardizing intelligence-gathering techniques and detention policies."

Staff writer Dan Eggen contributed to this report.