WASHINGTON — More than six years after the Bush administration sent hundreds of foreign prisoners to Guantanamo Bay, the rules for deciding just who can be held and for how long remain unclear.
Comments Monday by the attorney general and congressional Democrats suggest such issues will not be resolved soon -- and not before a new administration takes power.
Roughly 270 prisoners remain at Guantanamo, of whom about 20 are slated to be tried as war criminals. No one is sure what will happen to the rest of them, even if the prison itself is closed.
Last month, the Supreme Court said judges could hear appeals from the detainees, and in theory, order some of them released.
But the justices did not spell out who would qualify as an "unlawful enemy combatant," as the prisoners at Guantanamo are designated, nor did they say what proof would be needed to show that someone captured years ago remained a danger today.
On Monday morning, U.S. Atty. Gen. Michael B. Mukasey called on Congress to pass legislation to set the rules.
"I am urging Congress to act to resolve the difficult questions left open by the Supreme Court," he said in a speech at the American Enterprise Institute. "Without guidance from Congress," judges will disagree on the rules, and it will "lead to a long period of protracted litigation."
When asked if the Bush administration had drafted a legislative proposal, Mukasey said it had not. "It's Congress' job to pass legislation," he replied.
Key Democrats in Congress declined Monday, saying judges should work out the rules as they go along.
"The courts are well equipped to handle this situation," said Senate Majority Leader Harry Reid (D-Nev).
"Congress should not rush to pass yet another ill-conceived piece of legislation," added Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.). "With so little time left in this legislative session . . . it may be an issue more responsibly addressed in the next Congress with a new president."
Until rebuked by the Supreme Court, the Bush administration had maintained that the president on his own could decide who could be held as an enemy combatant, and for how long.
Civil libertarians faulted Bush's "unilateral" approach.
Now, however, with the administration in retreat, it is asking for Congress to set the rules. But this approach too has been denounced by civil libertarians.
The American Civil Liberties Union called Mukasey’s move an attempt "to subvert the Constitution" and "an enormous executive branch power grab."
The continuing spat between the Bush administration and Democrats over Guantanamo means a panel of federal judges will have to work out the rules for the detainees' cases.
In a brief statement responding to Mukasey's speech, Chief Judge Royce C. Lamberth said the judges were moving forward promptly to hold hearings.
"Guidance from Congress on these difficult subjects is, of course, always welcome," he said.
"Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful."
For judges, it is common to hear habeas appeals from prisoners who are seeking their release. In ordinary cases, the prisoners have been tried and convicted in a court; they appeal claiming their rights were violated in some way.
But in the Guantanamo cases, the prisoners have not been tried or convicted. The U.S. military contends it has evidence indicating they are dangerous, either because they were linked to terrorists or they were involved in fighting against Americans.
Lawyers for the detainees seek to challenge this evidence.
"In a lot of the cases, we believe it is misinformation or mistaken identity," said David Cynamon, a Washington lawyer who is representing four Kuwaitis who have been held since 2002.
How can these disputes over 6-year-old evidence be resolved? Mukasey warned against requiring that "each detainee receive a full-dress trial, with live testimony" from an array of witnesses, including soldiers.
Cynamon said he and other lawyers opposed a "paper process," whereby the judge would simply review memos submitted by the military.
It is also not clear who has the burden of proof in these cases.
Must the government prove the detainee was an enemy soldier or a terrorist? Or does the detainee have to prove he is innocent of the government's claims?
"Somebody has to figure out how these hearings will play out," Cynamon said. "I think the judiciary is better positioned to decide these questions."