Leading Republican senators were scratching their heads Thursday as they tried to make sense of what the Bush administration wants Congress to do about setting rules for military tribunals to try terrorism suspects.
The Supreme Court struck down the Bush administration’s original design for such tribunals last month as unconstitutional and in violation of the Geneva Conventions, which guarantee minimal rights to prisoners. Every time administration officials addressed the topic this week, they seemed to contradict each other. Thursday’s testimony before the Senate Armed Services Committee twisted the knots of confusion tighter.
On Tuesday the Pentagon said it would accept the court’s ruling that any such commissions must apply Common Article Three of the Geneva Conventions to ensure that prisoners get minimal rights. On Wednesday the White House said that would apply to prisoners held by any executive branch agency, although spokesmen couldn’t cite an executive order or other documentary evidence to support the assertion, and questions remained as to whether the CIA was bound by it. The CIA wouldn’t comment.
But on both days as well, Daniel J. Dell’Orto and Steven G. Bradbury, top lawyers for the Pentagon and Justice Department, told the House Armed Services and Senate Judiciary committees that it would be best if Congress would endorse the administration’s original approach to makeshift military commissions, with only minor adjustments.
They also argued against letting the tribunals operate under the Uniform Code of Military Justice, which would meet the Supreme Court’s legal standard, saying that could trigger a wave of problems, giving terrorists too many rights and jeopardizing prosecutions.
On Thursday, six of the nation’s top military judges _ from the Army, Navy, Air Force and Marines _ told senators that Congress shouldn’t ratify the Bush administration’s original military commissions.
Two key Republican senators listening to them testify before the Senate Armed Services Committee voiced confusion.
Committee Chairman John Warner, R-Va., and Sen. John McCain, R-Ariz., said National Security Adviser Stephen Hadley had told them privately that the administration was prepared to revise rules governing the tribunals to conform with the Uniform Code of Military Justice. They couldn’t understand why Dell’Orto and Bradbury were telling other congressional committees the opposite.
Warner said he was “somewhat perplexed” by the apparent contradiction.
“I do not believe that we, the Congress, have received the last word by any means as to where and how the administration would like to see this legislation proceed,” he said.
McCain said he hoped Hadley had spoken with authority.
“At that time, I was under the impression that was the administration’s position. I hope that it hasn’t changed,” McCain said.
Most of the six military judge advocates general said the Uniform Code of Military Justice should be the basis for new legislation setting up tribunals. Some said that how the U.S. treated detainees could affect how American soldiers were treated in future wars.
All six agreed, however, that the code should be amended for these tribunals. They said it would be impractical to give combatants taken from the battlefield the equivalent of Miranda rights or immediate access to lawyers and that accommodations would be needed to allow more hearsay evidence and to protect witnesses and their families.
Some advocated borrowing rules from international criminal tribunals such as Nuremberg or those dealing with Rwanda and the former Yugoslavia.
Brigadier Gen. Kevin M. Sandkuhler, staff judge advocate for the commandant of the Marine Corps, said it “could be workable” to use the administration’s policy as a starting point for legislation, but only if provisions from the uniform code were added.
The current and former military judges conceded it could be more difficult to convict terrorism suspects if they had human-rights protections that made certain confessions or evidence inadmissible.
Maj. Gen. Thomas J. Romig, former judge advocate general of the Army, testified that “it would be a stretch” to apply the Supreme Court’s ruling broadly to circumstances such as secret CIA prisons overseas.
To that, Sen. Robert Byrd, D-W.Va., asked whether the U.S. could circumvent the ruling by moving detainees to a secret facility in Eastern Europe.
“If that were to happen,” Romig said, “we’d probably have another case” before the Supreme Court.