Divisions Persist on Detainee Policy
Senate Hearing Airs Rift Between White House,
Key Republicans on Prosecuting Suspects
By JESS BRAVIN
July 12, 2006; Page A4
WASHINGTON -- A Senate hearing yesterday made clear that nearly five years after the Sept. 11 terror attacks, the Bush administration and key Republican lawmakers are at odds over how to prosecute suspected terrorists swept up in military operations in Afghanistan and elsewhere.
Late last month, the Supreme Court struck down the administration's plan, which called for military tribunals operating outside traditional rules of evidence and without judicial review or congressional oversight. The justices found that neither the president's constitutional role as commander in chief nor a Sept. 18, 2001, congressional resolution authorizing a military response to the terrorist attacks empowered President Bush to set up courts separate from the existing Uniform Code of Military Justice, which codifies U.S. and international laws of war, such as the Geneva Conventions.
Yesterday, Deputy Defense Secretary Gordon England issued a memorandum to the armed forces explaining that the Supreme Court, "as a matter of law," had found that a Geneva provision known as Common Article 3, listing several prisoner safeguards, applied to the conflict with al Qaeda. He instructed military personnel to comply with Common Article 3 -- but then asserted "it is my understanding" that existing interrogation practices and other prisoner policies already do so. He gave subordinates three weeks to review their procedures to ensure they comply with the Geneva provision, which bars not only torture, but also "outrages upon personal dignity, in particular, humiliating and degrading treatment."
White House spokesman Tony Snow said, "It is not really a reversal of policy. Humane treatment has always been the standard, and that is something that they followed at Guantanamo."
The England memorandum affects only the Defense Department, leaving unclear what safeguards apply to prisoners held by other agencies, such as the Central Intelligence Agency.
Other administration officials told the Senate Judiciary Committee yesterday that the problem wasn't the tribunal plan itself, but simply that Congress hadn't explicitly approved it. They suggested lawmakers address it by authorizing the president to proceed as he had planned to all along.
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"The most expeditious way to do it would be to essentially ratify the process that's already in place with the military commissions," said Daniel Dell'Orto, the Defense Department's principal deputy general counsel.
But some Republicans joined Democrats in asserting that the Supreme Court ruling demanded more. South Carolina Sen. Lindsey Graham, a Republican and an Air Force Reserve judge, said the starting point shouldn't be the military-commission regulations drafted internally by the Pentagon general counsel, but rather the Uniform Code of Military Justice, with changes regarding evidence and procedures based on specific national-security needs.
"If you'll adopt that attitude and that approach, we can get a product not only that will pass court muster, but the nation can be proud of," Sen. Graham said. "If you fight that approach, it's going to be a long, hot summer."
In ruling for Guantanamo prisoner Salim Hamdan, the Supreme Court found that the administration's plan didn't afford essential judicial guarantees, such as the right to attend all trial proceedings and challenge any prosecution evidence. Steven Bradbury, an acting assistant attorney general, testified that such rules were "unworkable" because "sources and methods of intelligence...simply cannot be shared with the defendant himself, who's a terrorist."
But Lt. Cmdr. Charles Swift, the Navy lawyer assigned to represent Mr. Hamdan, testified that those rules presumed the defendant's guilt -- and made it easy to convict an innocent defendant. After appearing in military-commission hearings before courts shut them down, Lt. Cmdr. Swift said he found that the procedures "were simply inadequate to ensure that trials produced accurate results." Mr. Hamdan, who admits serving as Osama bin Laden's driver, denies involvement in terrorism.
Senate Judiciary Chairman Arlen Specter (R., Pa.) recalled that he and other lawmakers had introduced legislation after 9/11 that would have authorized a military-commission system. The White House rebuffed such efforts, fearing that congressional action could dilute what it considered the president's unilateral war powers. Mr. Specter revived his bill hours after the Supreme Court ruled, and yesterday he asked administration officials to prepare a response within two weeks. Mr. Bradbury was noncommittal.
Several Democrats argued that the Supreme Court ruling was fatal not only to the military commissions but also to other administration policies, such as the warrantless electronic-surveillance program, that the White House says spring from the president's commander-in-chief function or Congress's military-force resolution.
Sen. Charles Schumer (D., N.Y.) asked if the Justice Department was reviewing other policies "that are also based on the [military-force resolution] -- which has been discredited by the Supreme Court -- so that we will avoid a Supreme Court decision" striking them down.
Mr. Bradbury replied that there was no formal review under way, and suggested the court's decision wasn't the broad repudiation of administration legal theories that critics have claimed.
But even some White House allies weren't so sure. Theodore Olson, a former solicitor general, testified that the court's decision "seriously diminishes the significance of the [military-force resolution] as a congressional endorsement of war powers."
Mr. Dell'Orto testified that the military holds about 1,000 prisoners world-wide. All were captured in antiterrorism operations, with about 450 held at Guantanamo Bay. Ten of those had been charged before the military-commission system the court struck down, but none of the trials had progressed beyond preliminary hearings.
Late in the afternoon, the committee was slated to consider another aspect of the legal tangle emerging from Guantanamo: the president's nomination of Pentagon General Counsel William J. Haynes II, who oversaw the military commissions, interrogation practices and other prisoner policies, to a federal appeals court in Richmond, Va.
As the civilian head of the Pentagon's legal office, Mr. Haynes has divided military lawyers. Some have praised his embrace of the administration's campaign to fashion aggressive new standards for treating suspected terrorists, while others have castigated him for deviating from decades' old military application of the Geneva Convention and other laws of war. |
