The Boston Globe
Bush urges Congress to ratify military tribunals
Judiciary panel vows policy review
By Rick Klein, Globe Staff | July 12, 2006
WASHINGTON -- Bush administration officials yesterday asked Congress to endorse the special military tribunals established by the president to try prisoners captured in the war on terror, but Republicans and Democrats alike balked at giving the White House quick legislative approval to a controversial system that the Supreme Court invalidated just two weeks ago.
At a Senate Judiciary Committee hearing, a top Pentagon attorney urged lawmakers to resist changing the military commissions set up for detainees at the US prison at Guantanamo Bay, Cuba. The Defense Department's principal deputy general counsel, Daniel J. Dell'Orto, said that reworking established procedures ``even modestly" would hamper efforts to bring terrorists to justice.
``The most expeditious way to do it would be to essentially ratify the process that's already in place with the military commissions," Dell'Orto said. ``It is simply not feasible in time of war to gather evidence in a manner that meets strict criminal procedural requirements."
Judiciary committee members, however, vowed a thorough review of the administration's policy -- a stark message to the White House that GOP leaders in Congress aren't going to rubber-stamp Bush's requests. Lawmakers said they would establish new justice procedures for detainees regarding such issues as their right to counsel, the use of evidence obtained through coercive tactics, and the admissibility of hearsay evidence.
``We're not going to leave it to the Department of Defense, or give the Department of Defense a blank check," Senate Judiciary c hairman Arlen Specter, a Pennsylvania Republican, said at the hearing. ``We're going to establish the standards and the policy, but we want your input before we do it."
Senator Lindsey O. Graham, a former Air Force lawyer, urged the administration to scrap the military commissions and consult with Congress about creating a new system to try detainees. The starting point for discussions, Graham said, should be the military's own justice system, and said additional safeguards could be installed to reflect the fact that trials for terror suspects should not harm national security.
``If you'll adopt that attitude and that approach, we can get a product not only that will pass court muster, but that the nation will be proud of," said Graham, a South Carolina Republican. ``If you fight that approach, it's going to be a long, hot summer."
On June 29, the Supreme Court ruled that the military commissions President Bush established to try detainees held at Guantanamo violated the Geneva Conventions and US law, but the high court suggested that Congress could fix the problem through legislation. The administration now wants lawmakers to legally establish the military commissions as is.
As Congress began to weigh its response yesterday, the Pentagon released a memo pledging to treat detainees in accordance with the minimum standards of humane treatment required by the Geneva Conventions. The memo is consistent with the court ruling, which found that detainees are entitled to the protections against degrading treatment covered by the conventions.
The memo by Deputy Defense Secretary Gordon England does not change administration policy, but clarifies its existing policies in the wake of the court ruling, establishing adherence to the conventions as a legal requirement, White House p ress s ecretary Tony Snow said. Under the conventions, detainees are protected from ``mutilation, cruel treatment, and torture," as well as ``outrages upon personal dignity" such as ``humiliating and degrading treatment." It also provides that sentences can only be handed down by courts ``affording all the judicial guarantees which are recognized as indispensable by civilized people."
The administration has not changed its long-held contention that ``enemy combatants" in Guantanamo and elsewhere aren't ``prisoners of war," an official designation that would entitle the detainees to additional rights and protections.
The court's 5-to-3 ruling against military tribunals has prompted Congress to take up the issue of prisoners held at Guantanamo, an area of law in which the Bush administration has claimed sweeping powers. Three separate congressional committees are holding hearings this week on how to proceed on trying suspected terrorists at Guantanamo in the wake of the ruling.
Members of both parties served notice yesterday that politics will color the election-year discussions over how to handle suspected terrorists in US custody. Republicans see the debate as a chance to paint Democrats as soft on suspected terrorists for wanting to grant them due-process rights. Democrats want to focus attention on areas where Bush, a Republican president, has worked unilaterally -- and, at least in this instance, outside the law.
Senator Russell Feingold, a Wisconsin Democrat, said the high court's ``major rebuke" of the Bush administration calls into further question other activities authorized by the president in the war on terror, including the National Security Agency's warrantless wiretapping program. ``The administration's extreme theories of executive power, its unilateral approach, and its refusal to listen to any dissent . . . have been entirely counterproductive and have harmed our relations around the world, weakening us in the fight against al Qaeda and its allies," Feingold said.
Senator Joseph R. Biden Jr., a Delaware Democrat, said the ruling is the latest example of a wartime mistake by the president, and said Bush's continued use of Guantanamo as a detention facility is harming the US image abroad. `` Things ain't good in Happy Valley," Biden said. ``I find it difficult for us to buy on to the notion, `Let's trust the president's judgment.' God love him, his judgment has been terrible on Iraq. His judgment has been terrible on the conduct of the war."
Steven G. Bradbury, the administration's acting assistant attorney general, shot back that Bush ``has done what he thought is best to protect the country from another attack." The world, he said, ``is a dangerous place; it's not Happy Valley." A cadre of Republicans on the panel sounded largely the same theme: Providing terror suspects with due-process protections, such as access to evidence against them and the right to remain silent, could harm efforts to thwart attacks.
``It could make the difference between whether thousands die or not," said Senator Orrin Hatch, a Utah Republican.
``This is a life-and-death matter," added Senator Jeff Sessions, Republican of Alabama. ``People are dying in Iraq and can die in this country on a regular basis." Senator John Cornyn, a Texas Republican, said terrorist detainees, who may have knowledge of planned attacks, can't be treated the same as a conventional POW or criminal suspect. To think otherwise, he said, is to have a ``pre-9/11 mindset."
Senator Charles E. Schumer, a New York Democrat, said Democrats aren't suggesting the administration shouldn't ``have every tool necessary" to fight terror. But Bush and his administration have acted ``as if they are the whole government," Schumer said. ``Time and time again, the president acts like a bull in a china shop and sets back the war on terror."
In a memo to Democrats, Senate m inority l eader Harry Reid of Nevada wrote that the party will offer up an ``honest assessment" of the president's wartime conduct. High on the list of criticisms: Bush's military commissions haven't tried or convicted any suspected terrorists. ``Bush Republicans, despite the tough talk, have failed to come up with a working system to keep America safe," Reid wrote.
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