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Homeland Security

15 June 2005

Senate Committee Examines Guantanamo Detainees' Legal Status

Defense, Justice Department officials testify to Judiciary Committee

By Merle D. Kellerhals, Jr.
Washington File Staff Writer

Washington -- A U.S. Senate committee held a hearing June 15 to determine if enemy combatants being held at the Guantanamo Bay, Cuba, detention center and elsewhere are being accorded sufficient legal rights.

Senate Judiciary Chairman Arlen Specter said at the outset, "the focus of today's hearing is going to be on the procedures used with detainees.  We do not have within the scope of this hearing the issues of torture or mistreatment."

Specter said it was too early to determine if there is a role for Congress in this issue, but that it was essential for his committee to determine the legal status of the detainees.

"It may be that it's too complex to handle for Congress, or it may be that Congress wants to sit back ... awaiting some action by the court no matter how long it takes," he said.  "But at any rate, Congress hasn't acted, and that's really what the focus of our hearing is today, is to what ought to be done."

The Judiciary Committee, which does not have primary oversight of the Defense Department, called Pentagon and Justice Department officials and three outside legal experts to testify about the military trials planned for some Guantanamo detainees and whether they are being held properly as enemy combatants.

The proposed military trials by a specially created commission are the first held by the United States since World War II, said Air Force Brigadier General Thomas L. Hemingway of the Defense Department's Office of Military Commissions.

The commission is set to hear cases against 12 of the 520 detainees being held at Guantanamo, he said, but trial proceedings have been delayed until final rulings are handed down by U.S. federal courts.

Military and Justice Department witnesses said that significant steps have been taken to protect the detainees' rights and to process their cases through the military commission.

Hemingway said that the rules of evidence and trial procedure established by the military commission compare favorably with those in use by the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia.  He said that the U.S. military is holding the detainees humanely, according them protections of the Geneva Conventions even though the detainees are not classified as lawful combatants.

"Military commissions are the appropriate forum to preserve safety, protect national security, and provide for full and fair trials consistent with our standards and those of the international community," Hemingway said.

Rear Admiral James M. McGarrah, who monitors the enemy combatant detention program for the Navy, said that of 558 detainees given hearings at Guantanamo, 520 were classified as enemy combatants, and of the remaining 38, 23 have been released so far.

"Because of the highly unusual nature of the global War on Terror, and because we do not want to detain any person longer than is necessary, we've taken this unprecedented and historic action to establish this process to permit enemy combatants to be heard while conflict is ongoing," McGarrah said.

J. Michael Wiggins, deputy associate attorney general with the Justice Department, said the detainees are not being held for criminal justice purposes and are not overseen by the U.S. criminal justice system.

Their detention "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 against our country," Wiggins said.

Senator Patrick Leahy, the committee's senior Democrat, said the detention center at Guantanamo has been an international embarrassment for the United States.

Specter said the committee will consider legislation that would put time limits on the disposition in the U.S. federal courts of detainees' rights.  The U.S. Supreme Court ruled in June 2004 that the detainees had the right to go to federal court to seek their release from Guantanamo.  And Specter said that since that ruling there have been some contradictory lower-court rulings.

New York University Law Professor Stephen Schulhofer told the committee that issues stemming from the detentions at Guantanamo are of significant importance to the U.S. national security.

"It is essential that we find out whether captured fighters have useful intelligence, and it is essential that we prevent them from returning to the battlefield," he said.

But he argued that Guantanamo and the allegations of abuse that have arisen are hurting U.S. efforts over the longer term.

Testimony from the hearing is available on the Senate Judiciary Committee's Web site.

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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