WASHINGTON – The White House said Thursday that dangerous detainees at Guantanamo Bay could end up walking Main Street U.S.A. as a result of last month's Supreme Court ruling about detainees' legal rights. Federal appeals courts, however, have indicated they have no intention of letting that happen.
The high court ruling, which gave all detainees the right to petition federal judges for immediate release, has intensified discussions within the Bush administration about what to do with the roughly 270 detainees held at the U.S. naval base at Guantanamo Bay, Cuba.
"I'm sure that none of us want Khalid Sheikh Mohammed walking around our neighborhoods," White House press secretary Dana Perino said about Al Qaeda's former third in command.
President Bush strongly disagreed with the Supreme Court decision that the foreigners held under indefinite detention at Guantanamo have the right to seek release in civilian courts. The 5-4 ruling was the third time the justices had repudiated Bush on his approach to holding the suspects outside the protections of U.S. law.
The legal ramifications of the Supreme Court decision remain fuzzy, but it's unlikely that a federal appeals court would order a detainee released into the United States even if a judge finds that the government was holding the detainee improperly. A court might tell the Bush administration to let a prisoner go, but it presumably would be up to the executive branch to figure out where.
Attorney General Michael Mukasey had predicted that the Supreme Court's decision would unleash a torrent of court filings from detainees seeking their freedom. Judges, however, have been particularly wary of telling the executive branch what to do with the detainees.
Late last month, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the military had improperly labeled Huzaifa Parhat, a Chinese Muslim, as an enemy combatant. The court said Parhat deserved a new hearing or should be released. But the court deftly avoided saying where he should be released — an indication that the courts expect the executive branch to wrestle with that decision.
Glenn Sulmasy, a national security fellow at Harvard University, said if the matter remains in the hands of civilian courts, there is an element of truth to the White House warning that detainees could be released in the United States. But he said that while it's possible, it's not probable.
He said the legislative and executive branches should find a third legal way — not through military commissions or the civilian courts — to deal with the detainees, perhaps a national security or other type of special court. "What is needed is a hybrid court," he said.
The administration opened the detention facility shortly after the Sept. 11, 2001, terrorist attacks to hold enemy combatants, people suspected of ties to Al Qaeda or the Taliban.
"We are in uncharted territory, and we have never had enemy combatants afforded constitutional rights like all of us have, so anybody who thinks that they know exactly what's going to happen if a detainee challenges his detention — his or her detention — in court, they're not being honest because we don't know what's going to happen," Perino said.
"But there is considered judgment, from many federal government lawyers — all the way up to the attorney general of the United States_ that it is a very real possibility that a dangerous detainee could be released into the United States as a result of this Supreme Court decision."
Judges at Washington's federal courthouse are moving quickly to process about 200 cases involving Guantanamo Bay detainees. Those cases would force the Justice Department to say why the detainees are being held and defend the decision to label them enemy combatants. Defense attorneys are convinced that, in many cases, the evidence will not hold up.
"The judge might say to the United States, 'You don't have enough evidence to hold this person,'" Perino said. "And then what do we do? ... Is he allowed to leave? And if so, is he picked up by immigration? Even if that's the case, they're only allowed to be held for six months."
Judge Thomas F. Hogan set a hearing for Tuesday to decide how the cases will proceed. Under the schedule expected to be adopted, judges could start reviewing evidence in a matter of weeks and some cases could be decided by September.