Military Commissions Expose Deep Divisions in Congress

Debate over treatment of detainees could prove contentious.

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When Lt. Col. Darrel Vandeveld took up his job as a prosecutor for the Office of Military Commissions in Guantánamo Bay, Cuba, in May 2007, he was, he said, "a true believer" in his charge to bring to justice prisoners whom President Bush had deemed "the worst of the worst."

But what Vandeveld witnessed until he left his job in September 2008—including confessions obtained through torture, abusive interrogations, and "ugly attempts to cover up" the failures of the system—changed his mind. It also convinced the lawyer, a veteran of the wars in both Iraq and Afghanistan, that the military commissions are "broken beyond repair."

The Senate is likely to begin debating a proposal to revamp the commissions by establishing an appeals process in civilian courts for detainees and limiting the use of some hearsay evidence soon. But it was clear on Capitol Hill last week that there are deep divisions over the legislation. Critics, including Vandeveld, who is now a senior prosecutor for Pennsylvania and an Army reservist, argue that the commissions would remain deeply flawed "even in the face of the most ardent, well-meaning legislative repackaging."

Among the more controversial aspects of the legislation is that it would continue to allow into evidence statements obtained through coercion; even those within the Obama administration disagree on this point. David Kris, head of the Justice Department's National Security Division, testified that federal courts could reverse the convictions of military commissions that used coerced statements, while Vice Adm. Bruce MacDonald, the Navy's judge advocate general, argues that the standard should be whether prisoner statements are "reliable," rather than whether they were "coerced."

Such finer points do not impress Vandeveld. "The impetus for this rule is obvious. The sad reality is that virtually every detainee has been subjected to torture and abuse repeatedly," he said.

Vandeveld testified that he did not reach these conclusions lightly. When one of the detainees he was prosecuting said that "he had been subject to horrible abuse, I accused him of exaggerating and ridiculed his story as 'idiotic.' " But as he delved deeper into the detainee's file, he saw evidence from Army criminal investigators that the detainee had "been hooded, slapped repeatedly across the face, and then thrown down at least one flight of stairs while in U.S. custody in Afghanistan." A bone scan showed that the detainee was 16 years old. While at Guantánamo, he tried to commit suicide by banging his head against a wall.

When Vandeveld attempted to bring such matters to the attention of his supervisors, they were "harshly dismissive" and, "on some unspoken level, began to question my loyalty, even though my combat experience exceeded both theirs combined."

Adding to the legislative debate was the testimony of the Pentagon's top lawyer, Jeh Johnson, who indicated that the Obama administration would continue President Bush's policy of indefinite detention, even for some acquitted at trial.

That led some on Capitol Hill to note that in such a case, the commissions' work would amount to little more than "show trials" that had no point at all—charges certain to surface in the upcoming debates.