In the wake of Thursday's Supreme Court ruling, U.S. officials are working to find a new way to determine the future of the approximately 450 men held at the Guantanamo Bay detention facility. The Court ruled that the government's procedure for trying detainees in special Military Commissions is not valid.
The Supreme Court's decision says the commissions are not valid because they do not follow procedures specifically authorized by the congress. That leaves open the possibility that the congress could pass a law establishing a new procedure for trying the detainees.
Speaking shortly after the ruling was handed down, President Bush indicated that was his preliminary understanding.
"As I understand it, now please don't hold me to this, that there is a way forward with military tribunals, in working with the United States Congress," said President Bush. "As I understand it, certain senators have already been out expressing their desire to address what the Supreme Court found. And we will work with the congress. I want to find a way forward."
Republican Senator John Warner is among those who have said they want the congress to develop a law that would create a legal process for the detainees.
"We'll look at other means to provide them justice under our laws and international law," said John Warner. "We might look to the federal system and other means by which to provide that."
The chairman of the Senate's Judiciary Committee, Senator Arlen Specter, says he already has legislation ready to provide the legal framework for the Guantanamo military commissions to resume, and he will begin the process of enacting that law next month.
Human rights groups and some detainee lawyers say the only proper way to try the cases is in the regular U.S. courts. But the administration and some members of congress have rejected that approach, saying the crimes are too serious and some of the evidence must be kept secret to protect intelligence sources.
Legal experts say that is one of the key issues because an existing law provides Geneva Convention protections to people brought before U.S. military courts. Law Professor Philip Heymann at Harvard University says it may be politically difficult for members of congress to change that.
"Nobody's in a big hurry to vote that, yes, you can execute someone without telling them on what basis you found them guilty," said Philip Heymann. "You put senators and congressmen in the position of choosing publicly between very offensive things."
Professor Heymann also says Thursday's Supreme Court decision could call into question other steps the administration is taking that it says are authorized by the congressional vote that approved the invasion of Afghanistan. He says in addition to the military tribunals, some could argue that the administration's tapping of international phone calls and monitoring of international financial transactions are also not authorized.
The Defense Department established the Military Commissions as a way to deal with the cases of the allegedly most dangerous detainees. So far, 10 men have had cases against them filed with the tribunals, with four more designated for indictment. All of those cases are now apparently invalid. A senior administration official estimated Thursday that eventually between 40 and 80 detainees could be indicted.
Officials have said they expect that most of the Guantanamo detainees will be released without having any charges filed, and indeed hundreds have already been released. In addition, about one hundred more have been approved for release and are awaiting the outcome of negotiations with their home countries, or other countries, to ensure they have a safe place to go.
But until those detainees can be released, along with any others that may be freed by an ongoing review process, and until decisions are made on how to proceed with the allegedly most dangerous detainees, Pentagon spokesman Bryan Whitman says the Guantanamo detention center must remain open.
"Guantanamo serves as an important detention and intelligence facility," said Bryan Whitman. "These are dangerous people. Many of them have vowed to go back to the battlefield if they were released. And it serves as a place where we're able to learn about terrorist networks, their operations, their activities. It enables us to thwart future attacks."
Officials say even four years after some of the detainees were captured, they continue to provide useful intelligence.
Human rights groups and others have criticized the very existence of the Guantanamo detention center, and claim detainees have been abused there. They hailed Thursday's ruling as a victory.
But officials noted Thursday that the Supreme Court decision does not affect the president's authority to detain enemy combatants for the duration of the war on terrorism, nor does it question the legality of the detention center at Guantanamo.
Officials also say the detainees are held in humane conditions. Still, to protest their continued detention, about a dozen prisoners rioted last month, and three committed suicide earlier this month.
The detainees' cases are reviewed annually to determine whether it is safe to release them. That review process is expected to continue, while the tribunals for those who have been charged with specific crimes will not, at least for now.
One result will likely be more legal limbo for some detainees while they wait for the U.S. government to devise a new way to put them on trial that the Supreme Court can accept.