Congress Debates Rules for Detainees

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The Senate Judiciary Committee debates the legal rights of detainees at the U.S. Navy prison in Guantanamo Bay, Cuba. The panel is also considering what branch or branches of government are authorized to determine procedures for prisoners.


This is MORNING EDITION from NPR News. I'm Renee Montagne.

Congress is joining the growing debate over the US prison camp at Guantanamo Bay, Cuba. The Senate Judiciary Committee yesterday heard testimony from legal experts as well as military and civilian officials about what rights the detainees should be afforded. NPR national security correspondent Jackie Northam reports.


Republican Senator Arlen Specter, who chairs the Senate Judiciary Committee, began the long and sometimes contentious hearing imparting two points. One is that it's taken Congress too long to hold a hearing about the treatment of detainees.

Senator ARLEN SPECTER (Republican, Pennsylvania): It may be that it's too hot to handle for Congress, may be that it's too complex to handle for Congress or it may be that Congress wants to sit back, as Congress--we--customarily do, awaiting some action by the court no matter how long it takes.

NORTHAM: The other point was that there was no room or time at the hearing to hash over the issues of abuse or torture. Instead, the time should be devoted to examine matters such as what legal protections, if any, should the detainees be granted, and what branch or branches of government are authorized to determine the policies and procedures surrounding the detainees. For months, Senator Patrick Leahy, the committee's ranking Democrat, wanted to know why the approximately 520 prisoners have been held at Guantanamo for more than three years. Only four detainees have been charged; not one of their trials has been completed. Leahy asked Brigadier General Thomas Hemingway with the Pentagon's Office of Military Commissions why there haven't been more prosecutions.

(Soundbite of hearing)

Senator PATRICK LEAHY (Democrat, Vermont): Why wasn't anything done for two years?

Brigadier General THOMAS HEMINGWAY (Pentagon's Office of Military Commissions): We have built a whole judicial system to try these cases, and the only reason we're not in trial today is because the exercise of the defense counsel and the detainees' rights in federal courts. We are under a restraining order or we would be trying cases right now down at Guantanamo.

Sen. LEAHY: Oh, those pesky rights...

Brig. Gen. HEMINGWAY: Well, you asked--Senator, you asked me...

Sen. LEAHY: ...seem to be holding...

Brig. Gen. HEMINGWAY: ...about delay, and that's the reason for the delay.

Sen. LEAHY: I was...

NORTHAM: Those rights sprang up throughout much of the questioning. Hemingway and others said that the detainees were given due process in the form of annual review boards, similar to parole boards, except that the detainees have never been convicted. And the prisoners go through a process called combat status review tribunals, or CSRTs, that determine whether or not they're enemy combatants, which in turn determines whether they'll be released or continue to be held. Democratic Senator Richard Durbin of Illinois said the CSRTs hardly guaranteed the prisoners were getting a fair shake at justice.

Senator RICHARD DURBIN (Democrat, Illinois): These tribunals are supposed to determine whether a detainee has been accurately designated as an enemy combatant. The detainee is not entitled to an attorney. The CSRTs rely upon secret evidence that the detainee is not allowed to review. That doesn't seem like due process by any stretch.

NORTHAM: But William Barr, former US attorney general from 1991 through 1993, says the detainees do not have the right to due process. Barr says that fighting wars, such as the one against terrorism, is about destroying the enemy's forces either by killing or capturing them. And Barr says when you capture them, you detain them.

Former Attorney General WILLIAM BARR (Justice Department): This is not a legal proceeding. There's no need to bring charges. They are being held because they were identified on the battlefield as threats to our forces and to our military mission. That determination has always been treated as a military determination so there are no due process rights for foreigners encountered on the battlefield.

NORTHAM: There were no recommendations made by the end of the hearing. But Senator Specter said this hearing was just the start of a lot of hard work by the committee to try to determine what rules should apply to the Guantanamo detainees. Jackie Northam, NPR News, Washington.

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