Behind the Congressional Gitmo Debate

After last week’s Senate Judiciary Committee hearing on the legal status of detainees at Guantanamo Bay, the chair of the Committee, Senator Arlen Specter (R-Penn.), says he plans to bring new legislation that would create a detention commission to allow detainees to get a hearing on their imprisonment at Guantanamo Bay. The proposal would mark the first time that Congress considers asserting its authority over the detainment of "enemy combatants" who have been held without charge.

"There’s an appropriate time for interrogation, but not unlimited," said Specter. "There has to be hearings of some sort and the question is how to structure it."

Specter, who gave few specifics on what the detention commission would look like, said his bill will be introduced within a few weeks and that he would consult with the Defense Department before making it public. Still, Specter asserts that Congress has the jurisdiction to set legal parameters on the detainment and treatment of those being held at Guantanamo Bay.

"The Constitution says flat out that Congress has the authority and responsibility to decide what kinds of processes we’ll handle when people are captured on land and sea," said Specter. "The Supreme Court was emphatic that that’s our job."

The White House has maintained full authority over the treatment of detainees, and it’s unlikely it would welcome Congress’s involvement. If Specter mustered up enough support in Congress for a detention commission, it could put Capitol Hill on a collision course with the White House over whether the some 500 detainees held at Guantanamo Bay should be allowed the rights of due process. Specter’s bill would need the president’s signature to become law.

"It’s hard to imagine, given the current structure of Congress and get to support from the executive or risk a veto, how that legislation would end up looking," said Eric Biel, senior counsel for Human Rights First, who, nonetheless, welcomes Specter’s involvement. "Congress has been derelict in engaging in the kind of oversight that is their responsibility. It’s basically been a free-for-all for the administration."

While some Republican lawmakers have indicated support for some type of process being created toward the continued detention of prisoners at Guantanamo Bay, the GOP leadership is not onboard. On Tuesday, House leaders prohibited Democratic Rep. Henry Waxman (D-Calif.) from bringing to the floor his amendment to the defense authorization measure to create an independent commission, similar to the 9/11 Commission, to investigate detainee abuse.

"What are they trying to hide?" asked House Democratic Minority Leader Nancy Pelosi (D-Calif.). "Why do they not want the facts of what happened there and what is the atmosphere that tolerated such activities, and why can’t we move on from this?"

The Republican leadership maintains that the some 10 internal investigations within the Pentagon have adequately addressed the issue and that the low-level soldiers involved in abuse have been punished. The Senate will consider its own amendment calling for an independent investigation when it takes up the armed forces authorization bill in two weeks.

"I think it’s a matter that deserves study," said the chair of the Senate Armed Service Committee, John Warner (R-Va.), who says he has not made up his mind on whether a commission should be formed, though he appears to be leaning against it.

"I think we’ve had a thorough, comprehensive series of investigations," said Warner. "I think it raises the question does someone independent have to go redo all that work."

When asked if the investigations conducted lacked legitimacy because the Pentagon was investigating itself, Warner responded, "The next thing you know the government is going to be run by commissions, and that’s not desirable."