Ruling Clouds Legal Fate of Some Detainees

The Supreme Court ruling striking down the military tribunals at Guantanamo Bay, Cuba, leaves uncertain the legal fate of some of the 450 inmates at the U.S. prison. The bulk come from Saudi Arabia, Afghanistan and Yemen; some have been held for as long as four-and-a-half years.

Pentagon spokesman Bryan Whitman says, "We're working closely with the Justice Department to review the ruling and determine the best way forward."

One military officer, who requested anonymity, said the ruling was unlikely to have much impact on the prison operations itself, noting that only 10 inmates were facing the tribunals.

"So technically, it only applies to 10 people," the officer said. Later, in a conference call, some military and Justice Department officials said that as many as 80 could face some sort of legal action.

But retired Rear Adm. John "Ted" Gordon, a former deputy judge advocate general for the Navy, said the Pentagon "is between a rock and a hard place."

While the high court struck down the tribunals, says Gordon, "the issue was they didn't have to shut down Guantanamo." Gordon found that unusual, considering earlier Supreme Court decisions on military tribunals during World War II and the Civil War, allowed them to go forward.

So the question is, how does the Pentagon process those being held at the prison if it can't use tribunals?

"The Pentagon's going to have to rethink this," he says.

Gordon says the Pentagon could just reclassify the inmates as "prisoners of war." That was something the Bush administration was reluctant to do, since they were not fighting as part of a nation state and were not wearing uniforms. From the time the prison opened, the administration viewed them as "unlawful combatants."

Gordon says it's unlikely the administration would want to shift all those facing tribunals to federal courts, due to the time-consuming nature of such proceedings and the classified evidence involved.

Michael O'Hanlon, a defense analyst at the Brookings Institution, says the Bush administration may be forced to come up with an entirely new legal structure.

"I think the overall message here is that the Bush administration is going to have a hard time justifying its policies," says O'Hanlon.

One idea, says O'Hanlon, is to create a special prosecutor or a small panel of judges with special clearances for classified information. Such a process would allow the evidence to be weighed and a decision made on which inmates should be tried, and which ones should be released.

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