GUANTANAMO BAY, CUBA — Inside of a week, a U.S. federal court, retired Gen. Colin L. Powell and two military judges assigned to the war-crimes tribunals here dealt serious blows to the Bush administration's efforts to detain and prosecute terrorism suspects.
Some legal scholars and analysts predict more obstacles to trials for any of the 385 foreign prisoners at the U.S. military detention compound.
But others believe that the system could be salvaged with repairs to its rules and procedures and with reduction of the prisoner population to only those likely to face charges. Authorities have no plans to prosecute an estimated 300 of the prisoners.
"The government talks about [the Guantanamo prisoners] being the worst of the worst, but obviously not all of them are like that," said Amos N. Guiora, a Case Western Reserve University law professor and director of the Institute for Global Security Law and Policy.
Guiora proposed that the U.S. government create a domestic court to try terrorism cases, one that would give defendants most of the U.S. constitutional protections of federal criminal courts, along with rights due prisoners of war as recognized by the Geneva Convention.
"Part of this process would imply the release of individuals who need not be there," Guiora said. "At the end of the day, we should be left with just those who do pose a threat to national security."
Guiora and others have argued that the Bush administration's insistence that it has the right and responsibility to detain any foreigner it designates an enemy combatant for the duration of its open-ended war on terrorism has damaged the image of the United States abroad.
"The international community is very upset with the fact we've said we can hold a citizen of the world indefinitely without charges or trial," said Scott Silliman, a retired Air Force colonel and judge advocate now heading Duke University Law School's Center on Law, Ethics and National Security.
Silliman added that ignoring the international chorus of criticism could dissuade allies from contributing troops or support for the wars in Iraq and Afghanistan.
Jeff Addicott, another former military judge now heading the Center for Terrorism Law at St. Mary's University in San Antonio, agrees that the number of detainees poses a public relations problem for the U.S. government that complicates efforts to prosecute the biggest security threats.
