Is Breyer floating a Guantanamo solution?

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - When a Supreme Court justice mentions an idea of how Congress might solve a pending national security problem, you pay attention.

When the problem is the Guantanamo detainees, you pay even more attention.

In Wednesday’s argument before the high court in the case of Boumediene vs. Bush, the latest attempt by detainees to win their release, Justice Stephen Breyer indicated three times that it would be possible for Congress to enact a law that would provide the basis for holding the detainees indefinitely without trial.

Breyer seemed to suggest to Solicitor General Paul Clement that long-term detention might pass muster with the Supreme Court under “some special statute involving preventive detention and danger, which has not yet been enacted.”

Those held at Guantanamo have their status reviewed by a Combatant Status Review Tribunal, a panel of military officers, to see if they need to be held.

Detention for decades?
Only some of them will later be tried before a military commission on charges that they committed war crimes; the others will simply be held for the duration of the conflict against al Qaida. And that could last for decades.

Video   Guantanamo and the high court Dec. 5: The Supreme Court Wednesday heard arguments on whether Guantanamo detainees can get a court hearing. NBC's Pete Williams reports. Nightly News

The detainees are seeking to have the court overturn last year's Military Commissions Act which denied them habeas corpus hearings before a federal judge to contest their detention.

Breyer’s mention of a possible preventive detention law may carry weight in Congress for two reasons: first, as a former counsel to the Senate Judiciary Committee, he used to be in the business of helping draft legislation, and second, he is a Democrat, a former protégé of Sen. Edward Kennedy, D-Mass., and an appointee of President Bill Clinton.

”Justice Breyer is a practical man; a problem-solver,” noted Doug Kmiec, a former top official in the Justice Department in the Reagan administration. “On occasion, this quality which no doubt informed his service to the Judiciary Committee continues to occur to him in his judicial work.”

Asked about Breyer’s preventive detention idea, Sen. Diane Feinstein, D-Calif., a member of the Judiciary Committee, said “It does sound like a possibility. The hard part is knowing what the criteria are” to be eligible for preventive detention.

If the standard is that someone is too dangerous to be released, then Feinstein said, “Does the driver for Osama bin Laden become that person? Does the housekeeper for Osama bin Laden become that person? Not necessarily.”

Feinstein voted against the Military Commissions Act (MCA) last year.

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