Bucking Convention
Congress and Bush seek a deal on terrorism detainees
The Supreme Court's landmark decision last month striking down President Bush's military tribunals made clear that Congress and the administration will have to work together to craft a new system for trying terrorism suspects. But just how difficult that will be is only now becoming clear. As Congress took up the issue last week, the results were hardly encouraging.
The court found the military tribunals illegal under both U.S. law and Article Three of the Geneva Conventions, which provide basic protections for wartime prisoners. The decision forces Bush to use established forms of military justice like courts-martial or get Congress to craft new rules for military tribunals.
Reversal. Bowing to the court, the administration conceded for the first time last week that Article Three applies to all of its terrorism detainees--reversing a policy set out in 2002. It was the latest in a larger retreat from the theory that Bush alone may decide how to interrogate and try detainees. "This is part of a realization that real mistakes have been made in our basic approach to the war on terror," says retired military judge Gary Solis.
At the same time, some in the administration tried to limit the impact of the court's decision--setting up clashes in Congress and within the administration at high-level meetings expected this week. "It will be an interesting litmus test," says a government official familiar with the discussions. "Do we still want to do it our way, or are we willing to work with Congress?"
In hearings last week, Daniel Dell'Orto, the Defense Department's principal deputy general counsel, advised Congress to approve the current tribunals, which allow secret evidence to be used. House Republicans appeared willing to go along--which would almost certainly prompt another court challenge. But senators from both parties balked, preferring a system based on normal rules of military justice, as recommended by top lawyers within the military. Senate Armed Services Committee Chair John Warner says White House national security adviser Stephen Hadley privately told him the administration will support the Senate plan.
Another sticking point will be interrogations. The Justice Department warned that Article Three, which prohibits "humiliating and degrading" treatment, could expose interrogators to criminal charges. Some senators agreed, suggesting Congress may alter U.S. law to permit controversial techniques.
The debate may only get more intense. Senate leaders don't expect a vote on the issue until after Labor Day--when the election-year atmosphere is sure to be poisonous. In the meantime, the fates of hundreds of detainees hang in the balance. Says Warner, "The eyes of the world are upon us."
This story appears in the July 24, 2006 print edition of U.S. News & World Report.
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