IRAQ, GUANTANAMO Prisoner abuse overshadows Bush's detainees policy

Some say the government's 'trust us' argument has been undermined.
KNIGHT RIDDER NEWSPAPERS
WASHINGTON -- Controversies over the handling of prisoners in Iraq and at the Guantanamo prison camp in Cuba have severely damaged the Bush administration's argument that its detention system is beyond the reach of U.S. law and courts, several legal experts said this week.
From the Supreme Court to a Seattle courtroom, judges are weighing whether detainees at the Guantanamo Navy base should have access to federal courts to challenge their confinement and whether two U.S. citizens held as "enemy combatants" have any legal rights.
The Justice Department has argued that the detainees don't deserve Geneva Convention protections, have no legal rights and that judges in wartime should have no say in how the executive branch and military handle captives.
Argument undermined
But the images of abused detainees in Iraqi prisons and the Pentagon's confirmation this week that interrogators used special "stress and duress" techniques on some captives in Guantanamo have undermined that "trust us" argument used in court, several analysts said.
"The justices don't live in solitary confinement, and this will certainly have an impact on them," said Eugene Fidell, director of the nonpartisan National Institute of Military Justice. "They have already expressed their doubts about these cases."
David Scheffer, a former war crimes ambassador in the State Department, said the justices now realize that the government didn't disclose much about how detainees in the war on terrorism have been treated.
"This increases the likelihood that the 'trust us' argument will not succeed," Scheffer said. "It will be the court's responsibility to draw some kind of line on this -- some fundamental rights for detainees even if they are not technically POWs."
The Supreme Court will rule by the end of June on the cases of the Guantanamo detainees and the separate cases of Jose Padilla and Yaser Hamdi, the two U.S. citizens held as enemy combatants.
Some Supreme Court observers said the court appeared closely divided on the cases, with justices Sandra Day O'Connor and Anthony Kennedy in the familiar roles of swing votes.
One former official in GOP administrations said that based on conversations this week, some Bush officials are "very worried that the revelations will hurt their case, and they could lose O'Connor and Kennedy." He spoke on condition of anonymity.
Lee Casey, another lawyer who served in the Justice Department under presidents Ronald Reagan and George H.W. Bush, said the recent disclosures "may well affect their thinking."
"But what could also make a difference is whether the military moves effectively to stop the abuses [in Iraqi prisons] and punish those responsible," said Casey. "That will show that the executive branch can handle this."
Justices experienced
Casey said the justices are experienced in reviewing abuses in the U.S. prison system and understand that Iraq is different from Guantanamo. The Defense Department maintains that Iraqi detainees have Geneva Convention protections, but those in Guantanamo don't because they allegedly are Taliban and Al-Qaida fighters who ignored the laws of war.
During oral arguments in April, several justices were clearly troubled by the Guantanamo camp, where U.S. courts lack jurisdiction, Justice Department lawyers say. The prison camp has been shrouded in secrecy since it opened in January 2002 and now holds about 600 detainees.