Recent hearings by the Judiciary Committee looking into the legal situation of detainees at Guantanamo revealed what Senator Arlen Specter has called a “crazy quilt” of regulations and overlapping jurisidctions that have made it virtually impossible to determine what precisely the legal rights of the enemy combatants being held in Cuba are.

Some of the testimony given by Administration officials is almost surreal. What it demonstrates to me, a strong supporter of the War on Terror and Administration policies in general, is that after more than three years, very little thought has been given to the legal status of the terrorists. This has left the Administration and by extension, the United States, wide open to propaganda assaults by both their political foes and our enemies.

It didn’t have to be this way. And the problem has much more to do with bureaucratic inertia than anything else. Apparently, the Justice Department and the Department of Defense have never been able to get together and agree on either a system to judge the terrorists in anything like a timely manner or even agree on what, if any, rights the terrorists will have during any such proceedings.

Granted – and this is something the left and their allies fail to comprehend – this is a conflict with no parallel in human history. We’re making the rules up as we go along. Ostensibly, this is why there’s so much confusion. Rulings by the courts, opinions from the Justice Department, and the exigencies of interrogating the enemy in time of war have all combined to make Guantanamo and other detention centers holding the terrorists a legal quagmire.

Testimony at the hearing given by Michael Wiggins, Deputy Associate Attorney General sought to outline the history of Guantanamo and the evolution of the legal standing of the terrorists being held there:

1. “Such detention is not for criminal justice purposes and is not part of our Nation’s criminal justice system. Rather, detention of enemy combatants serves the vital military objectives of preventing captured combatants from rejoining the conflict and gathering intelligence to further the overall war effort and to prevent additional attacks.”

2. “Each Guantanamo Bay detainee has received a formal adjudicatory hearing before a Combatant Status Review Tribunal (“CSRT”). Those tribunals, established pursuant to written orders by the Deputy Secretary of Defense and the Secretary of the Navy, were created specifically “to determine, in a fact-based proceeding, whether the individuals detained . . . at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation.”

During the CSRT proceedings, each detainee received substantial procedural protections modeled upon an Army regulation that governs hearings under Article 5 of the Third Geneva Convention. Among other things, each detainee received notice of the unclassified factual basis for his designation as an enemy combatant and an opportunity to testify, call witnesses, and present relevant and reasonably available evidence. Each detainee also received assistance from one military officer designated as his “personal representative for the purpose of assisting the detainee in connection with the CSRT review process.”

3. “Since the founding of our Nation, the U.S. military has used military commissions during wartime to try offenses against the laws of war. Congress has recognized this historic practice and approved its continuing use in both the Articles of War, enacted in 1916, and their successor, the Uniform Code of Military Justice. And the Supreme Court repeatedly upheld the use of military commissions in the 20th century against a series of legal challenges, including cases involving a presumed American citizen captured in the United States.”

4. “Under the Military Order, a military commission may not exercise jurisdiction over a detainee unless certain preconditions have been met. First, the detainee must be a non-citizen and the President must determine that (1) there is reason to believe that the detainee (i) is or was a member of al Qaida, (ii) has engaged or conspired to engage in acts of international terrorism against United States interests; or (iii) has knowingly harbored a member of al Qaida or someone otherwise involved in international terrorism against United States interests; and (2) it is in the interest of the United States to subject the detainee to the President’s Military Order.”

So far so good. The government established that these stateless terrorists were not uniformed soldiers engaged in fighting US forces but rather murderous criminals whose freedom could facilitate further attacks against us. The classification of “enemy combatants” is confirmed by a CSRT proceeding modelled after Geneva Convention protections. And what appears to be a necessarily broad but nevertheless fair definition of an enemy combatant is used to determine status.

Here’s where it gets muddled.

The Supreme Court ruled a year ago that the terrorists have the right to an attorney and that habeas corpus petitions can be litigated by the appeals courts. This has muddied the waters considerably as 95 habeas corpus petitions have been filed on behalf of more 200 terrorists. In addition, lower courts have ruled that the terrorists may be entitled to rights under the 5th amendment. Those issues are still making their way through the courts but as they do, the military tribunals cannot go forward. This has allowed lawyers for the terrorists to file a host of motions from asking courts to prevent additional interrogations of terrorists to lawyers in one case filing an emergency motion seeking an order requiring the Government to allow them to show detainees family videos on DVD. Others have filed motions objecting to the speed of mail transmission to and from the Naval Base and to the quality of the internet connection they are provided when visiting.

The narrowness of the Supreme Court ruling has thrown the entire legal status of the terrorists into chaos. This has not been helped by what apparently is a difference of opinion between the Justice Department and the military on exactly what rights the terrorists are entitled to. The military wants the terrorists rights hazily defined for good reasons. Ill-defined rights will make it more difficult for the terrorist’s lawyers to seek remedies in US courts. And while the Justice Department generally agrees with that notion, furthering a definition of terrorist’s rights will assist them in their court cases.

It’s past time for Congress to step in and define the legal rights of the terrorists. Senator Specter has a bill languishing in the Senate that would do just that. By defining what rights these enemy combatants are entitled to, we will make it easier to determine how many, if any, of the detainees at Guantanamo should be repatriated and how many should be kept there for the rest of their lives.

UPDATE

Michelle Malkin:

The reason for using military tribunals is that the alternative—civilian trials—is fraught with peril. Even former President Clinton admitted as much when he lamented recently that prosecuting terrorists sometimes requires “the presentation of evidence which would reveal the identity of the intelligence source, compromise the life of the intelligence source, maybe risk the life of the intelligence source, but more importantly dry up what we thought we were finding out about terror networks.”

What kind of mess are we in when Bill Clinton makes more sense than the Adolf Eichmann-invoking John McCain?

If the Supreme Court upholds some lower court rulings that give terrorists at Gitmo 5th amendment protections, we might as well open the doors and let them go. As Michelle points out, much of the evidence against these murderous thugs is extremely sensitive, much of it gleaned from NSA intercepts. Even a closed trial would be disasterous for our security given the sympathies of the lawyers who would be granted access to this sensitive intel.

Would you trust some of those moonbats not to reveal what they learn in classified sessions?