The first is to bring them before U.S. civilian courts. The second is to have them face a court-martial. The third is to ask Congress, as the Supreme Court ruling advised, for the necessary authorization to set up the special military courts it wants. Bringing Prisoners To Justice
There are now about 450 prisoners at Guantanamo Bay. Some have been there for as long as four years, without charge or trial.
Bush has said their trials are being held up by legal questions surrounding each individual case, and the question of how they should face justice.
On June 29, the U.S. Supreme Court ruled that Bush cannot try them before special military commissions without congressional authorization. The court also said that, as Bush envisioned them, the commissions violate U.S. law and the Geneva Conventions because they leave out many of the rights provided to defendants in civilian and military courts.
So what does Bush do now?
The two avenues immediately open to him are to put Guantanamo prisoners on trial in civilian or military venues, according to Jennifer Daskal, the director of U.S. advocacy at Human Rights Watch.Courts-Martial
Daskal says it would make more sense to bring the prisoners before a court-martial because they already are in military custody. Doing so would not elevate their status to that of prisoners of war, she said, so Bush could still refuse to afford them the protections granted in the Geneva Conventions.
"He's [Bush] been saying that after the Hamdan decision came out that he wanted to move toward closing Guantanamo and trying detainees and -- rather than going back to Congress and trying to get reauthorization for the military commissions and having another process that will likely be challenged once again -- it's time to move forward and put the terrorism suspects on trial," Daskal says. "And there's no reason that the military courts that exist already aren't sufficient to do that."
But didn't Bush decide to go with the military commissions as a way to expedite the judicial process? After all, trying more than 400 defendants will be time consuming, whether it happens in the civilian or military system.
Absolutely not, Daskal says. "If he [Bush] wanted to expedite the process, he would try them in the military courts-martial system that already exists," she says. "It's a good question that needs to be asked [of] the president, why he feels that the courts-martial system is not sufficient. I don't think that there's a good answer to that."Different Type Of Commission
So far, though, it looks as if Bush won't opt for either type of court for the Guantanamo trials. Senate Majority Leader Bill Frist (Republican, Tennessee) has announced plans to introduce a bill that would authorize the planned military commissions, but include some of the due-process rights that the struck-down commissions lacked.
And Senator Arlen Specter (Republican-Pennsylvania), the powerful head of the Senate Judiciary Committee, has already introduced just such a bill.Political Football
But can it pass? Members of the opposition Democratic Party are certain to oppose any legislation authorizing the commissions. And Bush's fellow Republicans, who control both houses of Congress, are mindful of Bush's political vulnerability -- and their own -- because of the increasing unpopularity of the Iraq war.
In November, all the seats in the House of Representatives and one-third of the Senate seats will be contested. Republicans are carefully choosing which Bush policies to embrace and which to avoid.
Still, a military commission bill stands a good chance of approval, according to Patrick Basham, the founding director of the Democracy Institute, a private policy-research center in Washington.
"It's all about [the congressional elections in] November. Everything's viewed through that prism," he says. "And, as it turns out, the only thing that the president has right now is an advantage -- it's not what it was, but it's still an advantage -- over conducting the war on terrorism. Not over Iraq itself, but over the general approach to defending this country from further terrorist attacks. The Republican majority on the Hill remains firmly in the president's camp on that."Settling For Second-Best
As a result, Basham says, Bush probably will get a bill that's somewhat close to what he's wanted all along. What's interesting, he adds, is that Bush probably could have had exactly what he wanted if he had asked Congress for permission to set up these special, restrictive military commissions just after the attacks of September 11, 2001.
Now Bush has to settle for second-best. "The climate was so overwhelmingly in favor of allowing the president to do whatever he felt was necessary to conduct the war on terrorism that I think he would have gotten very close, perhaps all [of what he wanted]," Basham says.
Bush's attempt to establish illegal military commissions has actually improved the outlook for the Guantanamo prisoners, Basham says, because now they'll have more rights at their eventual trials.
Even the administration could benefit, according to Basham.
World opinion has been running against Bush's policies toward the Guantanamo facility and inmates. Now that the administration is being forced to act in accordance with the Supreme Court, Basham predicts its future policies -- at least regarding Guantanamo -- will have an aura of legitimacy, even for its critics.