June 26, 2007— -- In a hearing Tuesday examining the legal basis for holding detainees at the Guantanamo Bay Naval Base, the focus turned to world opinion of the United States and the Bush administration's counterterrorism policies.
Amid recent debate over whether to close the detention facility altogether, the House Judiciary Committee is considering legislation to allow Guantanamo detainees to petition U.S. courts to challenge their confinement.
The facility was set up shortly after 9/11 to hold and interrogate high-value al Qaeda detainees captured after the U.S. war in Afghanistan, but so far the Pentagon has only held military commissions for three al Qaeda members, out of the 375 detainees currently held at Guantanamo.
The legal arguments over the detention facility and detainee rights shifted to how the United States is perceived around the world.
"No executive in an English-speaking country has claimed such tyrannical power since before the Magna Carta 800 years ago," House Judiciary Subcommittee Chairman Rep. Gerald Nadler, D-N.Y., said.
Lt. Cmdr. Charles Swift, a lawyer for Guantanamo detainee Salim Ahmed Hamdan, a former driver for Osama bin Laden, told the House committee that the image of Guantanamo was affecting America's standing in the Muslim world and had become a recruiting tool in jihadist propaganda.
"Guantanamo is Uncle Sam's recruiting poster of jihadist recruitment," he said.
Lt. Cmdr Swift said people in the Middle East look at Guantanamo as a reflection of values in the United States. Swift described a 2004 trip he took with a female lawyer to visit Hamdan's family in Yemen.
"The grandmother of that household brought together all the little girls of the household, and she pointed to my female colleague and said, 'Look at her. She went to school. She studied very, very hard. And now she's a lawyer,'" Swift said about his trip to Yemen with his colleague.
Swift continued with his anecdote, telling the committee, "And then she looked into their faces and said, 'If you go to school and study very, very hard, you can be anything.' Now, that woman is obviously Osama bin Laden's worst nightmare."
Making his final point, Swift said, "but she's counting on the rule of law for that to come true … how we treat her son-in-law determines whether those daughters are on our side or against us."
Former Secretary of State Colin Powell recently said on NBC's "Meet the Press" that the base should be closed.
"In the way the world perceives America and if it were up to me I would close Guantanamo not tomorrow but this afternoon," Powell said.
"And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system."
Greg Katsas, the principal acting associate attorney general, countered Swift's dramatic testimony saying, "The notion that improving procedures [at Guantanamo] … that al Qaeda will wither away is fanciful."
Former State Department lawyer William H. Taft IV said the facility has strained relations with U.S. allies, saying "[it's] potentially a cost with our friends. … Enthusiasm in our policies has been diminished.
The Supreme Court has addressed the habeas corpus issue in Guantanamo detainee cases, acknowledging that they do have a statutory right to judicial review. Since 2004, the administration has passed the Detainee Treatment Act and the Military Commissions Act to try to address the rulings from the Supreme Court, and Congress is now considering legislation as well.
Katsas said, "Extending habeas corpus to aliens abroad is both unnecessary and profoundly unwise. Over 50 years ago, the Supreme Court … held that aliens outside the sovereign territory of the U.S. have no constitutional rights."
"The Military Commissions Act is the most generous set of procedural rights ever afforded in the history of warfare to individuals against whom we are fighting," Brad Berenson, former associate White House counsel told the committee.
Jonathan Hafetz, a lawyer who represents the sole enemy combatant being held at the U.S. Navy Brig in Charleston, S.C., said, "Habeas guarantees individuals seized and detained by the government the right to question the legal and factual basis for their detention. It has traditionally been available to citizens, noncitizens, slaves, alleged spies and alleged enemies alike."
Katsas said that litigation over detainee rights has already placed burdens on the U.S. court system.
"The litigation imposed substantial burdens on the operation of a military base abroad in time of war … preventing military commission trials from even beginning, and it impeded interrogations critical to preventing further attacks," he said.
"These burdens would be even greater if habeas were made available to alien enemy combatants in larger conflicts."