As discussion continues in the Democrat-controlled Congress over the detention facility at the U.S. naval base at Guantanamo Bay, Cuba, legislation is pending in both the House and the Senate regarding a key legal issue that has been the subject of emotional debate. From Capitol Hill, VOA's Dan Robinson reports that habeas corpus, the ability of detainees to challenge the basis for their captivity, was under discussion Thursday in a House hearing.
Since the Guantanamo Bay detention center was opened in the wake of the September 11, 2001 terrorist attacks, to hold Taleban fighters and suspected members of al-Qaida, the U.S. has faced growing criticism that its treatment of detainees violates both U.S. and international law.
Measures are pending in Congress to close the facility. Next week, the House of Representatives is likely to vote on one such piece of legislation.
However, while lawmakers gear up vote on the future of Guantanamo, which the Bush administration has said it would like to close at some point, debate over the rights of detainees rages on.
Witnesses appearing Thursday before the House Armed Services Committee traded arguments as lawmakers sought more clarity about the issue.
Lieutenant Colonel Stephen Abraham, an Army reservist and lawyer, gained notoriety when he became the first military officer to publicly criticize what are known as Combatant Status Review Tribunals (CSRT) used at Guantanamo to classify detainees.
"We have to begin by remembering that the Constitution did not invent the rights of life and liberty," he said. "But all it took was the absence of truth, a silence demonstrated through the CSRT process, to literally extinguish it."
Abraham describes a process at Guantanamo in which he asserts commanders merely rubber stamp decisions already made regarding individual detainees.
He acknowledges only serving on one tribunal, a point seized on by panel Republicans in challenging his expertise, but notes that he saw documents in hundreds of cases.
In June, after Abraham filed a legal affidavit containing his criticisms, the U.S. Supreme Court, in a reversal, agreed to hear appeals by prisoners at Guantanamo.
Legislation to provide habeas corpus rights to detainees has been approved by a Senate committee and has bipartisan support there, while House Armed Services Democratic chairman Ike Skelton is sponsoring a measure in the House.
Some of the emotion on the issue was evident in an exchange between Democrat Ellen Tauscher, and Patrick Philbin.
A former associate deputy attorney general, Philbin asserts that the U.S. is exceeding its obligations to detainees in a time of war against terrorism, and opposes giving detainees further rights to appease international critics:
PHILBIN: "The only way that we could respond to all our critics is to do everything that they want and to stop treating this as a war and to start treating it as criminal law enforcement, and that is not the path that the president chose to take."
TAUSCHER: "Sir, that cannot be your legal opinion, I would say that is your ideological opinion."
Philbin and other opponents of habeas corpus for Guantanamo detainees assert that the military review process, and laws passed by Congress such as the 2005 Detainee Treatment Act and the 2006 Military Commissions Act, provide sufficient protection for detainees, and an unprecedented degree of review by a civilian court.
"They seek to provide justice, fairly and lawfully administered, while safeguarding the security of the American people," said Daniel Dell'Orto, Principal Deputy General Counsel for the Department of Defense. "To discard this system, or any element of it, would be to ignore wisdom and experience and doing so would do a dis-service to the American public."
Republicans, such as Thelma Drake, agreed with the government's position.
"What divides this discussion, in my mind, is whether or not you think an enemy combatant who is captured on a foreign battlefield, a person who has sworn to kill each and every one of us, is covered by the U.S. Constitution, and I personally do not believe that they are," she said.
However, Stephen Oleskey, a lawyer who has represented Guantanamo detainees, disputes the government's and military's contention that existing methods provide a fair way to determine detainee status:
"We're not talking about people, in most cases, who were found in the battlefields," he noted. "Five percent of them were. We're talking about people who were not found on battlefields, and the very question at issue is, are they unlawful enemy combatants or not and we need a fair process to resolve that."
Congressman Joe Sestak is a Pennsylvania Democrat and retired vice-admiral who oversaw U.S. naval operations linked to Iraq and Afghanistan:
"Down here in GITMO [Guantanamo Bay] we actually are holding men on trial for how long? Until a man decides, not the rule of law," he said.
House legislation proposes to allow foreigners detained by the U.S. as enemy combatants to apply for habeas corpus, except for those in what the legislation calls a zone of active combat involving U.S. military forces.
A measure placed on the Senate's legislative schedule at the end of June would repeal provisions of the Military Commission Act that eliminated the jurisdiction of U.S. courts to hear habeas corpus petitions by foreigners detained as enemy combatants.