WASHINGTON — The Bush administration is locked in an internal debate over whether to present Congress with proposed legislation that would allow suspected terrorists to be held in the United States -- a possible first step toward closing the detention facility at Guantanamo Bay, Cuba -- according to current and former officials.
The officials said the administration was not on the verge of shutting down Guantanamo. But the legislation under debate could make it easier to move some suspects to the United States by lessening the risk that federal courts would set them free in Ft. Leavenworth, Kan., or Charleston, S.C.
Last month's Supreme Court decision granting federal courts the power to review the detention of prisoners at Guantanamo has thrown the administration's detainee policy into doubt. Administration officials have been debating how best to react to the ruling, which restored habeas corpus rights to Guantanamo detainees. This was the third time the high court had rejected the administration's attempts to hold detainees indefinitely without allowing them full access to civilian courts.
The administration would like to keep at Guantanamo the 80 prisoners it intends to try under military commissions and wants to jump-start those tribunals. Uncertain, though, is the fate of an additional 120 prisoners; the military believes they are too dangerous to release but lacks the evidence to try them.
One of the proposals under consideration, according to officials, would allow regular judicial review of those prisoners' detention. The proposal would include legislation ensuring that if a court finds that they should no longer be considered "enemy combatants," they would not be released but could be held while deportation procedures are begun.
Top Bush administration officials met this week to discuss the fate of Guantanamo and to debate various approaches.
On one side are Secretary of State Condoleezza Rice and Defense Secretary Robert M. Gates, who believe that the United States should move to close Guantanamo. On the other side are Atty. Gen. Michael B. Mukasey and Vice President Dick Cheney, who believe that closing the facility is impractical.
Getting any legislation through Congress is likely to be difficult. Republicans may be reluctant to pass anything that moves toward closing Guantanamo, especially if it means moving suspected terrorists to the United States. Liberal Democrats may be reluctant to sanction any sort of long-term detention without trial, arguing that it is an unnecessary infringement of civil liberties.
But Charles Stimson, a legal scholar at the Heritage Foundation, said Thursday that Congress had an obligation to pass legislation.
"Congress' silence on this is no longer an option," he said.
Stimson, a former deputy assistant Defense secretary for detainee affairs, said that Congress needed to draft legislation to cover detainees who federal courts decide are not enemy combatants as well as those whose enemy-combatant status is upheld.
The measure, Stimson said, will have to determine how often enemy combatants' status is reviewed by the courts and what standards are used to assess the evidence.
As the administration ratchets up deliberations over its detainee policy, the Pentagon is pushing to move forward with the military commissions, which have been delayed for years by successful court challenges.
The Pentagon has ordered each of the military services to make dozens of lawyers available to assist with the trials.
Top lawyers are skeptical of the move, unsure if the commission trials are really ready to start. They also are concerned that dozens of lawyers could be sent to Guantanamo only to sit on their hands.
"We have a lot of demand for legal talent, and our resources are finite," said a Pentagon lawyer. "But the word is they want to move forward energetically, and they need prosecutors, defense counsel and support personnel. So we are saluting smartly."
The attorney, like other officials interviewed for this report, spoke on the condition of anonymity because no decisions about Guantanamo had been made.
The Guantanamo facility houses about 265 prisoners, but the administration has announced that it intends to release about 65 of them when it can arrange for transfers to their home countries.
Some officials within the administration favor a comprehensive approach to overhauling the detainee policy, possibly including asking Congress to set up a national security court to oversee the detention of terrorism suspects. They argue that, in the aftermath of the Supreme Court ruling last month, the administration should create a detention policy that can withstand judicial and congressional scrutiny.
Others favor looking for ways to roll back the Supreme Court decision and keep Guantanamo functioning much as it has been.