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• Caribbean
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• 06 / 16 / 2008

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Gates declined to say what exactly should be done next until he has reviewed the 5-4 US Supreme Court ruling that found prisoners at the Guantanamo facility had the right to challenge their detention in US civilian courts.

"I've often said, as I've told the president, and the secretary of state, we ought to close Guantanamo," Gates said at a news conference in Brussels at the end of a meeting of NATO defence ministers.

"I think that despite the fact that in many respects Guantanamo is a state of the art prison now, early reports of abuses and so on unquestionably were a black eye for the United States," he said.

"But how we deal with it, how we deal with terrorists who are trying to kill more Americans subsequent to the court's decision, is something we'll have to look at," he said.

The ruling on Thursday was the third time in four years the US high court has dealt a blow to the Bush administration's efforts to hold and try terrorism suspects under a special regime outside the jurisdiction of US courts.

Gates had previously sought to close the detention centre, but lawmakers said last month the US was "stuck".

He said the US was prepared to send 60 or 70 prisoners home but either cannot persuade their countries to take them, or cannot trust the countries not to free them.

"The second problem is ... what do you do with that irreducible 70 or 80 who you cannot let loose but will not be charged and will not be sent home," he said.

The ruling that Guantanamo prisoners have constitutional rights has fundamentally changed the rules for trying them and could bring down the special war crimes court, defence lawyers said.

"The trials down there will no longer be show trials," said Navy Lieutenant Commander Brian Mizer, a military lawyer assigned to defend Osama bin Laden's driver, Salim Hamdan, in the Guantanamo court. "If the government elects to proceed with military commissions, they will be required to conduct trials that comport with the US Constitution."

The Justice Department said the US will proceed with the trials of 19 defendants, including five who could be executed if convicted of plotting the September 11 attacks.

The Supreme Court ruling did not directly address the legality of the Guantanamo court but it gave the defendants a new avenue to challenge its jurisdiction to try them.

The 2006 law that laid the foundation for the trials at the US naval base in Cuba said that court can try only "unlawful enemy combatants", a term used by the Bush administration for fighters it considers undeserving of the legal protections granted to civilians and soldiers.

That status was determined by an administrative panel of military officers, a system critics said allowed the jailers to be the judges. The Supreme Court ruling said prisoners had the right to challenge that status in the US federal courts, forcing the government to show evidence to continue holding them.

That will likely delay the pending trials, said David Glazier, a retired Navy surface warfare officer who teaches law at Loyola Law School.

"Courts will generally entertain questions about jurisdiction - whether an individual may properly be tried by the court they are appearing before for the offence charged - before an actual trial," Glazier said.

(AFP)