Guantanamo ruling sets up political showdown

Erika Niedowski

• Last Updated: June 16. 2008 11:52PM UAE / June 16. 2008 7:52PM GMT

WASHINGTON // John McCain has called the detention centre at Guantanamo Bay “a symbol which is very bad for America”. Barack Obama has dubbed it a “legal black hole”. Both have said they would close it.

But their respective reactions to the supreme court’s landmark decision last week giving foreign terrorism suspects the constitutional right to appeal their detention in civilian courts set up a potential political showdown on something the world is watching: how the next US administration will fight the so-called “war on terrorism”.

Mr Obama praised the court’s decision as an “important step toward re-establishing our credibility as a nation committed to the rule of law” and said it “ensures that we can protect our nation and bring terrorists to justice while also protecting our core values”.

Mr McCain called it “one of the worst” decisions in US history and vowed to do what he could on Capitol Hill to minimise its effect.

The ruling came as a blow to George W Bush, who has used a liberal interpretation of the boundaries of executive power in crafting his administration’s counterterrorism strategy. Speaking last week during what is probably his final state visit to Europe as president, Mr Bush said he would abide by the court’s decision – though he disagreed with it – but left open the possibility of seeking additional legislation to limit prisoners’ rights.

Criticising Guantanamo has become a popular pastime in Washington, and not just among Democratic foes of the president. Last year, Colin Powell, Mr Bush’s former secretary of state, characterised it as a “major, major problem” and said he would close it “not tomorrow but this afternoon”. Also last year, testifying on Capitol Hill, the defence secretary, Robert Gates, conceded the facility was tainted and should be shut down. Even Mr Bush has said he would like to see Guantanamo closed.

Because both presumptive presidential nominees support its closing – and because last week’s supreme court decision seemed to undermine the legal justification for it – that appears to be the facility’s most likely fate. The question remaining is how the United States will handle the men being held there.

The administration has long characterised the prisoners at Guantanamo as “the worst of the worst”, but the government, by its own admission, intends to prosecute only some of them. About 70 could be released immediately, at least in theory, though Mr Gates said last month that in some cases the prisoners’ home countries will not accept them or “we are concerned that the home government will let them loose once we return them home”. Human rights activists are concerned that the men could be tortured at home.

There are still more prisoners being held at Guantanamo who will not face charges but whom US officials have deemed “too dangerous” for release.

Ben Wizner, a staff attorney at the American Civil Liberties Union, which has long campaigned to close Guantanamo, predicted the ruling may effectively pressure the administration to begin releasing some of the detainees – even as it tries to press on with high-profile prosecutions.

“If it turns out, as we all suspected, that many of these are not the world’s most dangerous terrorists … the administration will not want to see that play out in federal court,” Mr Wizner said. After last week’s ruling, he said of administration officials: “You’re going to see who they really want to hold.”

Mr McCain, who reiterated last week his intention to close Guantanamo, advocates transferring detainees – though it is not entirely clear how many and which ones – to a maximum-security prison run by the military in Fort Leavenworth, Kansas.

While in the past he has spoken out against holding terrorism suspects indefinitely without charge, he supports the system of military commissions set up to try those subjects outside of the regular court system, and without all the rights that system affords.

Mr Obama has been less specific on what he would do with the prisoners once he shut the facility. But in 2006 he voted against legislation known as the Military Commissions Act, backed by Mr McCain, which preserved the framework of the tribunal system and stripped detainees of their right to habeas corpus – the right upheld by the recent supreme court decision.

Intentionally or not, the court’s ruling laid out the lines of a familiar partisan fight over terrorism that is likely to play out in the presidential campaign in the coming months. Democrats will try, as Mr Obama immediately did, to portray Mr McCain as an extension of Mr Bush. “The court’s decision is a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain,” Mr Obama said.Republicans, meanwhile, will try to paint Mr Obama as soft on terrorism.

The dissent by Antonin Scalia, one of four justices who voted against, seemed to offer an easy way to do that. He said the decision would make the war on terrorism “harder on us” and “almost certainly cause more Americans to be killed”. Mr McCain immediately seized upon the dissent, which calls the ruling “disastrous”.

“Politics is going to come in here very, very fast,” said Frida Berrigan, an organiser with the grassroots group Witness Against Torture, which is also seeking to close Guantanamo.

“Does Congress have a mandate to back the supreme court in the middle of this election season?” she asked. “I think there’s going to be a lot of roadblocks in the way of enacting what the supreme court has judged and determined.

“What does it mean for the men of Guantanamo?” Ms Berrigan said. “It means more waiting; it means more ambiguity; it means more games – with their lives at stake.”

eniedowski@thenational.ae