How to Try a Fanatic
The White House wants to revive those military tribunals, but Congress has a few ideas of its own
Last week's speech by President George W. Bush skillfully put pressure on Congress to quickly approve a revised system for military tribunals that could pass constitutional muster. But Capitol Hill may not be in much of a cooperative mood. Lawmakers have only four weeks left this session, the politics of midterm elections are intruding, and figuring out how to proceed has caused plenty of squabbling-much of it among Republicans.
It's an unenviable position for Congress-but not unexpected. In June the administration got a stinging rebuke from the Supreme Court, which ruled in Hamdan v. Rumsfeld that the military commissions designed to try foreign terrorists were illegal under U.S. law. The high court chided the White House for creating a system that didn't meet basic fairness standards and said congressional authorization was needed to create such courts. The administration last week floated a bill that responded in some respects; for instance, defendants could appeal their convictions to a federal court.
Divisive. The bill immediately caused Republican fissures, mostly because controversial aspects of the pre- Hamdan tribunals would remain intact. Senate Majority Leader Bill Frist vowed to bring the president's measure to the floor as is, but several Republicans on the Senate Armed Services Committee-Sens. John McCain, Lindsey Graham, and John Warner-scrambled to finish a counterproposal they said would be more legally defensible. "What I want to do is try these guys within my lifetime," said Graham, a former military lawyer. "If we keep passing bills that get struck down by the Supreme Court, we've done no good."
The biggest stumbling block for Congress is the administration's plan for handling classified evidence; sensitive security information could be introduced to seal a terrorist conviction without the accused-or his civilian lawyer-ever seeing it. The administration said the tactic would rarely be used, but that didn't mollify critics. Several top Pentagon lawyers told Congress last week that no civilized country has such a system, and Marine Brig. Gen. James Walker said the United States "should not be the first."
Kangaroo court. Another major point of friction: exactly what would be admissible in the tribunals. Any confessions gained through coercion would be permissible, as would hearsay evidence-crucial in cases relying on the secondhand knowledge of a small number of terrorists. But Michael Greenberger, a University of Maryland legal scholar, says that by greenlighting hearsay, the administration could create a slippery slope in which unauthenticated documents might be treated like hard proof. The standards Congress adopts, he adds, could set precedents elsewhere. "We're going to put our armed services all around the world at risk," says Greenberger, "if we create a kangaroo court here."
McCain, Warner, and Graham-backed by Senate Democrats who want to avoid being labeled as soft on terrorism-will offer details of their alternative this week. Evidence gleaned through coercion will almost certainly be forbidden in their model, and McCain says they will use the "200-year [accepted] standard" designed for courts-martial to deal with classified evidence: A judge views sensitive information privately and forbids its use in court if it is too sensitive to be shared with the accused. The administration's allies say that could torpedo some cases. Those same players will push to preserve a clause in the administration's bill that says U.S. interrogators cannot be charged under the U.S. War Crimes Act for questioning techniques they've used since Sept. 11, 2001. "No one said this stuff is easy," muses Greenberger. The coming debate in Congress will very likely underscore that point.
This story appears in the September 18, 2006 print edition of U.S. News & World Report.