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Debate Continues on Holding Terror Suspects at Guantanamo Bay

The U.S. Congress is debating legislation to change the way alleged terrorists, known as unlawful enemy combatants, are allowed to use America's legal system while they are being detained by the Defense Department at Guantanamo Bay, Cuba. The Bush administration argues the United States can hold enemy combatants until the end of the war on terror, while others say the detainees should not be in custody for lengthy periods without criminal charges or complete access to the U.S. legal system. VOA correspondent Meredith Buel has details in this background report from Washington.

Last year the U.S. Supreme Court struck down the Bush administration's military tribunal system for terrorism suspects being held at Guantanamo Bay. The court ruled that the system in place at the time violated American and international laws.

Following the court's decision, the U.S. Congress passed the Military Commissions Act, which set up new rules for interrogating suspected terrorists and bringing them to trial.

Defense Department attorney Daniel Dell'Orto says the system ensures alien enemy combatants will be treated fairly, while providing for the national security of the United States.

"The United States is in a state of armed conflict with al-Qaida, the Taleban and their supporters," said Daniel Dell'Orto. "During this conflict, persons have been captured by the United States and its allies, and some of those persons have been detained as enemy combatants. The United States is entitled to hold these enemy combatant detainees until the end of hostilities. The principal purpose of this detention is to prevent the persons from returning to the battlefield, as some have done upon their release."

A military tribunal reviews the cases of the detainees at Guantanamo to determine whether each person meets the criteria to be designated as an enemy combatant, generally defined as anyone who was part of or supported Taleban or al-Qaida forces.

An annual review is conducted to determine the need to continue the detention of anyone designated as an enemy combatant.

Much of the controversy about the Military Commissions Act involves the elimination of what are known as habeas corpus rights for the detainees.

Habeas corpus is the name of a legal action that allows those in American custody to go to a civilian court and challenge their detention. It has historically been an important tool for the safeguarding of individual freedom against arbitrary action by the state.

U.S. Senator Patrick Leahy says the enemy combatants should have the right to challenge their detention.

"We have removed a vital check our legal system provides against the government arbitrarily detaining people for life without charge," said Patrick Leahy. "It is wrong. It is unconstitutional, and I would say clearly it is un-American."

Jeffrey Smith is the former General Counsel for the Central Intelligence Agency. He has now left the government and as part of a private law practice represents the families of Kuwaiti citizens held at Guantanamo.

Smith says the detainees at the base should have access to the U.S. court system.

"Law matters, especially in time of war," said Jeffrey Smith. "It matters because we are a democracy and because we respect the rule of law. It matters because the law of war governs how we fight. It governs how we treat those whom we capture, and perhaps most importantly, it governs how we expect our fellow citizens to be treated when they are captured."

The detention camp at Guantanamo Bay has been the focus of international criticism and President Bush has said he would like to close it down if he could discover a way to keep terrorists in custody elsewhere.

President Bush says the military commissions will provide a fair trial in which the accused are presumed innocent, have access to a lawyer and can hear all evidence against them.

Defense Department attorney Daniel Dell'Orto says the United States has captured, screened and released about 10,000 individuals since 2001, and only a small percentage of those captured have been transferred to Guantanamo.

Dell'Orto says the Military Commissions Act provides unlawful enemy combatants with a system that goes beyond what is required by the Geneva Conventions and, he says, is unprecedented in the history of war.

"Detention of enemy combatants in wartime is not criminal punishment and therefore does not require that the individual be charged or tried in a court of law," he said. "It is a matter of security and military necessity that has long been recognized as legitimate under international law."

The Defense Department says about 385 prisoners are being held at Guantanamo, and 80 others are awaiting transfer or release to another country, if those nations are willing to take them.