White House debates future of Guantanamo

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.

But officials believe the administration is most likely to put forward the more modest proposal, which would ensure that any detainees found not to be enemy combatants would be deported rather than released in the United States.