A much-awaited Supreme Court ruling could determine whether the first U.S. military commissions since World War II go forward for terror suspects held at Guantanamo Bay, Cuba, but it will not answer a more complicated question: what to do with potentially hundreds there who are unlikely to ever face trial.
After the recent suicides of three detainees and amid growing international scorn, President Bush said twice that he wants the prison closed. First, though, he was awaiting a decision from the court on the validity of the commissions he ordered to handle terror suspects outside traditional military or civilian courts.
That decision could come in the case of Salim Ahmed Hamdan, a one-time driver and bodyguard for al-Qaida leader Osama bin Laden. At issue are the president's authority to convene the commissions, whether Geneva Conventions protections should apply, and the Supreme Court's jurisdiction to decide those questions. The court is expected to rule in the next two weeks.
Its answer could send government lawyers scrambling anew in their efforts to prosecute the war on terror, more than four years after the first detainees arrived at the U.S. facility in Cuba. But legal scholars and analysts say the decision is unlikely to resolve what has become a broader political problem for the United States: the continued detention of men deemed enemy combatants in a conflict that is not expected to have a clear end.
'How do you end it?'
"It's a real problem for the administration," said Scott L. Silliman, a retired Air Force attorney who serves as executive director of the Center on Law, Ethics and National Security at Duke University. "As long as we do it, we're being criticized. But how do you end it? What's the end strategy for those people, whether they be at Guantanamo Bay or at black sites somewhere else in the world?"
Of roughly 460 terror suspects now at Guantanamo, just 10 have been charged and are to be tried before a military tribunal - with Hamdan's case the first to go before a military commission. U.S. officials have determined that at least 120 of the detainees are eligible for transfer or release under a joint program run by the Defense and State Departments that has freed 192 detainees and transferred 95 to other governments.
"We have no desire to be the world's jailers," said State Department spokesman Sean McCormick. "We have to work out certain things. We have to assure ourselves that these people will not be mistreated. And we have to assure ourselves that they're not going to go in the front door of the jail [in another country] and out the back, because that would defeat the purpose."
For now, the case of a single detainee - Hamdan - is at the center of intense speculation about the future of the Guantanamo prison. During a recent meeting with the Danish prime minister and again at a Rose Garden news conference on Wednesday, Bush said he was "waiting on the Supreme Court" to rule in that case before moving ahead with legal proceedings against detainees.
His remarks seemed to signal a softening in the administration's opposition to trying the Guantanamo prisoners in civilian courts in the United States or through traditional courts-martial. With the Danish premier, Bush said some detainees "ought to be tried in courts here in the United States. We will file such court claims once the Supreme Court makes its decision ... as to the proper venue for these trials."
Returning to the topic Wednesday, Bush said: "I'd like to close Guantanamo. But I also recognize that we're holding some people that are darned dangerous and that we'd better have a plan to deal with them in our courts. And the best way to handle ... these types of people is through our military courts."
The comments came as Bush sought to ease condemnation of the Guantanamo detentions, especially among U.S. allies in Europe, where he will participate in a summit this week. But opponents of the military commissions questioned whether his remarks hinted at the administration's plans if the Supreme Court deals it a setback.
"What I see him doing is asking the court for some help to get him off the spot, to tell him that these detentions are illegal and then allow him to take who knows whatever measures," said Bill Goodman, legal director for the Center for Constitutional Rights, which is representing many of the prisoners. "Guantanamo obviously has become a huge embarrassment, so he needs a way to get out of the hot spot that he's in."
If the Supreme Court rules that the military commissions are legal, or if the justices find that they do not have jurisdiction in the case, the commissions probably would proceed. Some of the cases were under way while the military awaited the court's decision, but all hearings were halted after the suicides.
Any other findings by the court, however, could upend the commissions. Among the potential outcomes is for the court to split 4-4, because new Chief Justice John G. Roberts Jr. recused himself in the case. He was part of a three-judge appeals court panel last summer that upheld the commissions - a ruling that would stand if there were no Supreme Court majority.
Maj. Jane E. Boomer, an Air Force attorney and spokeswoman for the Office on Military Commissions, declined last week to discuss any contingency plans if the high court rules against the military commissions.
"We're cognizant of the pending decision from the Supreme Court, and we will carefully review the opinion when it is released and respond accordingly," Boomer said. "But at this time, we will not speculate on what the court is going to do."
The Bush administration would not have to automatically turn to existing courts, said Carl Tobias, a law professor at the University of Richmond.
"One solution would be for the executive to work with the Congress and fashion legislation that would clearly authorize these commissions if they are needed," Tobias said. "There are many better ways to approach it than what the administration has done by itself that would afford more due process, more openness ... and still wouldn't take every case to federal court. It's not either-or, all or nothing."
Duke's Silliman said a more likely outcome is that most of detainees will never face trial.
"I don't think they're going to be prosecuted at all," he said. "I think that probably 95 percent of the detainees at Guantanamo Bay, we have insufficient information on them to come up with a criminal charge, period. ... What we'd like to do is say, 'OK, we'll send them back to France, Germany, Yemen, Saudi Arabia. You come up with some charge and keep them off the street.' And, well, they can't easily do that."
A balancing act
Past wars nearly always have included prolonged detentions of enemy fighters, with the majority released at the end of armed conflict. But the current fight against terrorism presents thornier issues that include questions about whether alleged al-Qaida fighters should be treated as prisoners of war and when to authorize the release of detainees if the terror threat is expected to stretch on without end.
Goodman of the Center for Constitutional Rights said he fears that the U.S. government will employ a system of "outsourcing illegal detention," in which detainees transferred to foreign jails could continue to be held indefinitely, without court review and at risk of torture.
Others, including Silliman, said that complicated balancing act could mean that the final chapter for Guantanamo Bay stretches well into the next administration. The military is prepared for that possibility: A new $30 million prison building at the detention center, with air conditioning, medical bays and exercise areas, is expected to be completed by August.
"Part of closing Guantanamo is to send some folks back home, like we've been doing," Bush said. "Of course, sometimes we get criticized for sending some people out of Guantanamo back to their home country because of the nature of the home countries; a little bit of a Catch-22."