WASHINGTON—The Bush administration urged Congress on Wednesday to write a law ratifying its use of makeshift military commissions to try detainees in the war on terror, rather than mandate new tribunals with strict legal codes so they would conform to the recent Supreme Court ruling that President Bush's commissions are unconstitutional.
The administration's position illustrated anew that the June 29 Supreme Court decision is still subject to conflicting interpretations, and it remains unclear what the Bush administration is doing to abide by it. While Bush verbally pledged to abide by the ruling, the administration's plea to Congress suggests that it wants the legislature to rubber-stamp the policy the court found illegal.
"All Congress needs to do . . . is to ratify that process, and we can move on very, very quickly," Daniel J. Dell'Orto, principal deputy general counsel for the Department of Defense, told the House Armed Services Committee.
He said the court "apparently found no underlying flaw in the commission processes established—it simply said the president did not consult with the Congress in devising the tribunals." Congress could satisfy the court with "minor tinkering" to the Bush policy, he said.
That view is drawing objections from military lawyers, legal experts and leading senators.
John D. Hutson, former Navy judge advocate general and now dean of the Franklin Pierce Law Center in Concord, N.H., told the House committee that ratifying the administration's policy "would be a dramatic mistake" that could run into legal trouble and further damage the nation's international standing.
More critics are expected to weigh in Thursday when the Senate Armed Services Committee holds a hearing on how to respond to the high court's Hamdan v. Rumsfeld ruling last month. The 5-3 decision essentially said that Bush's tribunals violated U.S. law and the Geneva Conventions of 1949 because they didn't provide the legal procedural safeguards that civilian or military courts require. The ruling also stated emphatically that Bush didn't have inherent power as commander in chief to treat detainees however he chose, but instead must get authority from Congress.
Meanwhile, one day after the Pentagon declared a major policy shift that detainees under its jurisdiction are covered by Article Three of the Geneva Conventions, which bans inhumane treatment of prisoners, questions remained as to whether that policy applies to the CIA, which reportedly holds detainees in secret prisons abroad.
A White House spokesman, Ken Lisaius, said the new policy applies uniformly across the executive branch because that's what the Supreme Court decision requires, but he said he didn't know if Bush had issued a formal order to that effect. Lisaius wouldn't discuss the CIA, and the CIA declined to comment.
Skeptics noted that so far only one executive agency, the Defense Department, has issued a formal policy change in writing to make its practices conform to the court's decision.
"Show me the opinion that says that," said Scott Silliman, an expert on the law of war at Duke University, regarding the White House's assurance that the entire executive branch is covered by the policy change. "I want to see it in writing."
Asked if he knew whether the CIA was covered by the administration's policy shift, Sen. John McCain, R-Ariz., said: "I'm not clear on that. We'll ask tomorrow" at the Senate Armed Services Committee hearing.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has proposed legislation to restructure military commissions, and Sen. Lindsey Graham, R-S.C., who has served as a military judge, has urged Congress to mandate a new policy based on the Uniform Code of Military Justice (UCMJ).
Hutson favors drafting a plan based on the UCMJ and Manual for Courts Martial, with some relaxed rules to accommodate the difficulties of putting together a case against a suspected terrorist during a war.
"We didn't prosecute Hitler's driver or bodyguard and probably wouldn't have if we had captured him," he said. "This is different. We're taking people who are coming in off the battlefield, and rather than just holding them, which we could do, we want to prosecute them. That's fine, but if we're going to do that, we have to do it in accordance with certain rules that are generally accepted as indispensable by civilized people."
But Dell'Orto, acting Assistant Attorney General Steven Bradbury and former Solicitor General Theodore Olson said a UCMJ-based policy would be impractical and have unanticipated consequences.
Hundreds of provisions would need to be changed, they said; otherwise, soldiers hunting for Osama bin Laden might worry that they have to read combatants their rights or get them lawyers before interrogating them.
Rep. Vic Snyder, D-Ark., replied that suggesting terrorists would get Miranda rights is a red herring. "I mean, who the hell is saying that?" he said. "I think when you have something struck down, you don't want to build it back just the same as it was, the status quo. You want to do better. And I think we have an opportunity to do better in terms of worldwide opinion."
Other House lawmakers said they don't have a problem with ratifying the White House's old plan if that gets the United States back to the business of prosecuting terrorism suspects.
"I'm not an attorney. I don't even have a college degree," said one of them, Rep. Candice Miller, R-Mich. "But I think I'm a reflection of Middle America."
(McClatchy Newspapers correspondent Ron Hutcheson contributed to this story.)
(c) 2006, McClatchy-Tribune Information Services.
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