Is Breyer floating a Guantanamo solution?

The senior Republican on the Judiciary Committee, Sen. Arlen Specter, R-Pa. said Thursday of Breyer's suggestion, “I think it would be an idea worth exploring, but until you do, you certainly have to accord detainees habeas corpus rights.”

He added, “It’s something we might consider for the future.”

Specter unsuccessfully tried to amend the MCA to remove its denial of habeas rights for Guantanamo detainees. After his amendment was defeated, he voted for the act.

Not floating an idea
House Judiciary Committee member, Rep. Jerrold Nadler, D- N.Y., who was in the courtroom as a spectator for Wednesday’s argument before the court, said of Breyer, “I don’t think he was floating an idea and inviting Congress to do something. I think he was probably thinking out loud. He was saying we don’t have a preventive detention statute” and thus can not continue to hold the detainees who haven’t been charged with crimes.

Nadler also said that by passing last year’s Military Commissions Act that authorizes the president to label someone an “enemy combatant” and hold them indefinitely, Congress has already created a form of indefinite detention.

“In effect, you already have preventive detention,” Nadler said.

Nadler voted against the MCA and thinks the detainees ought to have the right to habeas corpus review by a federal judge, outside the CSRT process, to determine independently if each one is a terrorist or if they are being held a case of mistaken identity.

Sen. Jon Kyl, R-Ariz., said Breyer’s idea wasn’t really necessary. An enemy combatant held under a preventive detention law is “comparable to the prisoner-of-war status, which has never required statutory authorization to hold people,” Kyl said.

“If you could hold a prisoner of war, so that he doesn’t go back out on the battlefield to kill you,” Kyl said, then surely “you can hold these guys (the enemy combatants at Guantanamo).”

'A different kind of war'
“Now there’s also an argument that says, ‘But, this is a different kind of war because there may not be the kind of ending to it that results in a treaty being signed” and all the prisoners being returned to their own country.

But, Kyl asked, “If this war doesn’t have the kind of clear-cut ending Justice Breyer would like to see, does that make a difference? I’m not sure that it does. If the executive believes that the people (at Guantanamo) are still a danger to our troops if they are released, what difference does it make if it’s six years or ten years?”

Kyl voted for the MCA.

Kmiec said Wednesday’s oral argument in the Boumediene case indicated that Breyer was leaning toward a ruling that would give Guantanamo detainees habeas rights.

“Recognizing how this might well result in the release of bona fide terrorists, Breyer is presumably trying to mitigate that potential harm with a defined detention,” Kmiec said.

“Breyer’s thought may also been influenced by several rough proposals floating about from Attorney General Mukasey and former Deputy Attorney George Terwilliger among others to regularize the treatment of detainees under a statute, much along the detention for mental illness lines,” said Kmiec.

Meanwhile, Sen. Lindsey Graham, R-S.C., is working on a bill to try to improve the CSRT process.

“One thing I’m working on with Sen. (Carl) Levin that I think would improve the current system is to give military lawyers to enemy combatants as they face the Combatant Status Review Tribunal to provide a representative component, and to put a military judge in charge of the tribunal,” Graham said.

Levin, a Michigan Democrat who is chairman of the Armed Services Committee, was wary about discussing the topic, saying only there was “a possibility we may introduce a bill.”

He said that due to the pending Boumediene case, “One of my concerns is that we not do anything that looks like we’re trying in any way to influence or that would have an effect” on the court’s deliberations.

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