Supreme Court ruling makes Guantanamo a campaign issue

WASHINGTON Thu Jun 12, 2008 6:08pm EDT

WASHINGTON (Reuters) - A Supreme Court ruling on Guantanamo Bay prison divided the two U.S. presidential candidates on Thursday but made it likely that one of them will have to decide what to do with its 270 inmates.

The decision knocked out a key pillar of the Bush administration's antiterrorism policy. Democratic candidate Barack Obama hailed the ruling and his rival in the November election, John McCain, joined fellow Republican, President George W. Bush, in expressing concern about it.

The ruling throws into turmoil the process Bush pushed through Congress in 2006 for trying terrorism suspects through military commissions. The court said prisoners can go before U.S. federal judges to challenge their years of detention.

The 5-4 court ruling increases the prospect that Congress and whoever takes office as president next January will be left to decide how to handle the cases.

"This is a case about how the policy of the war on terrorism is shifting as a political issue," said Faiz Shakir, research director of the Center for American Progress think tank. "The divide will actually be of political importance."

Bush and influential Democratic lawmakers said they were studying the need for new legislation.

Heritage Foundation analyst Charles Stimson, the Pentagon's head of detainee affairs until last year, said a rewriting of detainee policy is needed, but seemed unlikely until a new president and Congress took office:

"I have a sincere hope that people will not use this as an opportunity to posture and get votes, but as an opportunity to roll up the sleeves, work across the aisle and in an adult manner focus on the real threat that continues to exist."

BUSH OVERRULED

The court ruled that foreign terrorism suspects at Guantanamo had a legal right known as "habeas corpus" to challenge their detention in court.

The decision overturned a central provision of a law Bush pushed through a Republican-controlled Congress in 2006, which established a system of military commissions to try terrorism suspects. That law said Guantanamo prisoners were not entitled to habeas corpus rights, central to U.S. law since the country was founded.

McCain supported the 2006 military commissions law and successfully opposed later attempts to restore the rights to challenge detention. The Arizona senator said on Thursday he was concerned by the court's decision and that "we should pay attention" to the dissenting opinion by Chief Justice John Roberts. He reiterated his support, shared by Obama, for closing Guantanamo.

Obama opposed the 2006 law and supported a 2007 repeal of to restore habeas rights. He called the court's decision "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo -- yet another failed policy supported by John McCain."

Bush said he would abide by the decision. "That doesn't mean I have to agree with it," he told a news conference in Rome.

ELECTION ISSUE

Republicans in 2002 and 2004 scored election victories in campaigns depicting them as tough on terrorism and Democrats as soft. But public fear of terrorism is diminishing as an election issue, and approval of Bush's counterterrorism policies, while still a strong point, has fallen since those earlier elections.

Opinion polls show McCain with an edge over Obama on security issues.

McCain may try to cast his support for closing Guantanamo -- and his earlier support for anti-torture legislation -- as an example of breaking with Bush, Shakir said. But given his votes, "McCain has sided on the opposite side of the Supreme Court," he said.

The court's decision will force the administration and Congress to recognize that they have erred in trying to fit terrorism cases into a legal structure governing warfare between countries, said Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University in Texas.

Instead, he said, they should look to Europe where governments revised civil law to deal with modern terrorism.

Stimson said it was time to end a detainee process Bush began after the September 11 attacks and tried to impose without the involvement of Congress -- a tack which led to three major Supreme Court defeats over the issue.

"I hope that when the dust settles, and it will take a few weeks and months for all of the heavy breathing to stop, that the serious people here ... and I know that Obama and McCain are serious people, will focus on a long-term, durable legal framework for incapacitating this enemy, taking them off the battlefield."

"We have to get out of this cycle of every June getting punched in the stomach by the Supreme Court," he said.

(Editing by Patricia Wilson and Howard Goller)

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