What Should U.S. Do With Gitmo Detainees?

This is a partial transcript of "Special Report With Brit Hume" from June 30, 2006, that has been edited for clarity.

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SEN. JOHN CORNYN, R-TEXAS: Some would have us close Guantanamo Bay, release these dangerous terrorists so they can return to the battlefield and kill innocent civilians or our armed forces who are fighting in Afghanistan and Iraq. That's clearly not acceptable.

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JIM ANGLE, GUEST HOST: When we began the War on Terror five years ago, the Bush administration needed a place to hold enemy prisoners. The remote Navy base at Guantanamo Bay, Cuba was chosen and today holds 450 detainees. Some have been there for years, but most have never actually been charged with anything. Now that the Supreme Court said that they can't be tried by a military panel, what do we do with suspects in the War on Terror? Questions for Lee Casey, a Washington lawyer, specializing in international and humanitarian law; he also worked at the Justice Department during the Reagan and first Bush administration.

Lee, thanks for joining us. Let's make this as simple as we can, because there are a lot of details here, but we want to concentrate on the main questions. It seems that the court dealt with how you can try these detainees, if you decide to try them. Now, most of these people are like POWs in many respects, so why try them at all?

LEE CASEY, INTERNATIONAL LAW EXPERT: The fact is, you're right. We don't need to try them. We have a legal right to hold them throughout the balance of the conflict, while hostilities continue. There are a couple of reasons that we do, that the government does want to try some of these guys. The first is that this is going to be a long conflict. And it is to some extent only fair that people be given a criminal trial in the proper context, in a military context if you plan on holding them a very, very long time.

Secondly, many of them actually deserve to be tried. These individuals are some of the worst members of Al Qaeda and they deserve a criminal process and to be punished criminally.

ANGLE: And many of them, their whole goal, is to kill civilians, in many cases, innocent civilians, not people involved in warfare in anyway, and that, in itself is a war crime.

CASEY: Absolutely. That is one of the most serious war crimes, to deliberately target civilians for attack.

ANGLE: Now, only 10 of the people at Guantanamo have been charged with a crime. And it's very difficult. You are picking up people on the battlefields, we heard earlier and you don't have evidence as you would have in a criminal trial. You are finding witnesses would be next to impossible. So how do you proceed for the people we do want to try?

CASEY: Well, that's why the rules for military commissions are somewhat different than the rules in the normal federal U.S. District Court or even in a courts marshal, because we do have these constraints. Battlefields are not police evidence-gathering scenes. It is difficult to come up with the kind of evidence that you would have in a criminal trial. That doesn't mean you can't come up with evidence, but meeting the same standard would be very difficult.

ANGLE: Now, the Supreme Court did not say that Guantanamo should close?

CASEY: Right.

ANGLE: It did not say that we can't hold these people?

CASEY: Absolutely right.

ANGLE: What it said was, you can't try them the way the president wanted to because he came up with a court without consulting with Congress, is that right?

CASEY: That is a fair assessment. It didn't say we can't go ahead with the military commissions. The rules have to change and the court strongly suggested, at least five members of the court strongly suggested that the president go to Congress.

ANGLE: Now, the problem here I think is obvious to everyone. Ordinarily, when the war is over, you let POWs go home, you send them back, but that is when you are dealing with a sovereign nation and there is an end to the hostilities and peace treaty. Here, we heard bin Laden today. It is clear that this is not likely to end any time soon, if ever. So, what do you do with people that we would have to hold for an indefinite period of time?

CASEY: Well, that is the great problem. In some sense, this war is no more indefinite than any other war. You never know when the war is going to end, when you're going to win. But, it is true that because we don't have a state on the other side. There is no particular territory we have to conquer, no capital, capture Berlin and it's all over.

ANGLE: No moment of finality.

CASEY: Right, no moment of finality here, at least not a very well determined one. It does present this problem of do you simply hold on to people and the law gives us the right to do that perhaps for the rest of their lives.

ANGLE: That seems to be at the crux of the anxiety that people overseas feel, the criticism. And even here is that, and you have seen some drop off in public opinion, people say, yes, you want to hold these people, you don't want to turn them lose. Some of the countries you want to return them to don't want them. So most of the uneasiness about this seems to be the fact that it has gone on for so long?

CASEY: I think that's right. And the compromise that the Bush administration came up with was to use military commission, to give them their day in court and to criminally prosecute and come up with a sentence.

ANGLE: Now 200 of the people I should say out of the 650 that were there have been released and in they're in the process of releasing more. And presumably that process will continue?

CASEY: Presumably so.

ANGLE: Lee Casey, thanks very much for joining us.

Watch "Special Report With Brit Hume" weeknights at 6 p.m. EST.

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