Congress Mulls New Guantanamo Guidelines

In the wake of the U.S. Supreme Court ruling last month that the Bush administration's military tribunal system violates U. S. and international law, Congress begins hearings into possible laws to govern treatment of detainees at the Guantanamo Bay military post.

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MADELEINE BRAND, host:

From the NPR West, this is DAY TO DAY. I'm Madeleine Brand. Coming up, a report from Moscow on the death of a Chechen rebel leader whose terror attacks killed hundreds of people.

First, though, the legal rights of accused terrorists at Guantanamo Bay. This week, Congress begins hearings on how to try those prisoners after the Supreme Court struck down President Bush's secret military tribunals. The court said the commissions violate the Constitution as well as domestic and international law.

And joining me to talk about the hearings is NPR legal affairs correspondent Nina Totenberg. And Nina, first of all, who are the major congressional players going to be on this?

NINA TOTENBERG reporting:

Well, this week there are going to be hearings before the House Armed Services Committee, the Senate Judiciary Committee. But the real action is likely to come in the Senate Armed Services Committee where Senator John Warner, Lindsey Graham, John McCain, all Republicans - John Warner, of course, is the chairman - will be big players. And for the Democrats, probably, Senator Carl Levin of Michigan.

BRAND: And Nina, I understand they are not unified on this issue.

TOTENBERG: Well, there are some Republicans who want to just pass a law codifying the system that was struck down by the Supreme Court, and other Republicans who want to sort of tweak the existing court martial system.

Ironically, the Democrats and some Republicans like Senator Graham and Senator Specter - who's the chairman of the Judiciary Committee - tried five years ago to enlist the administration in writing a military tribunal law. But the Bush administration rebuffed all those efforts, contending that it had the unilateral power to establish these commissions.

And now, five years later, obviously, the administration has a lot less bargaining power.

BRAND: And where are the Democrats on this?

TOTENBERG: Well, the Democrats - you know, some Republicans have made clear that they would like to use this as an election issue. And the Democrats are, frankly, worried about being painted as weak on terrorism, which is why those in the middle - like Graham, Warner, Specter, McCain - are going to play such a central role in all of this.

BRAND: And can Congress simply just pass a law giving the president the authority to establish these commissions any way he wishes, essentially overruling the Supreme Court in a way?

TOTENBERG: Well, they can certainly pass that kind of a law. But it's not clear it would pass muster at the Supreme Court. It could be struck down all over again.

Just to cite one example, the Bush commissions allowed evidence obtained by coercion. The Supreme Court said that violated the Geneva Convention. To cite another example, the Bush commissions had no independent judges running the trials and no independent judicial review. Rather, it was the president who ultimately reviewed all of the outcomes for fairness.

And the Supreme Court said that violated the uniform code of military justice. And the court implied strongly that even if it were authorized by Congress, it might not be tolerated.

So, you know, there are problems with just codifying what the president did before.

BRAND: Mm hmm. And there's also been a lot of discussion about the global reputation of the United States, how it's suffered vis a vis these trials. Will that figure into this week's hearings?

TOTENBERG: Well, some in Congress see this as an opportunity to recapture some of the reputation that we've lost over Guantanamo. Others want to pass a law making clear that the Geneva Convention protections do not apply to these prisoners.

And I've got to tell you, there's a certain misunderstanding about what the Supreme Court said on this point. The court hinged its opinion on what's called Common Article III, which applies to everyone in a conflict, civilians and military alike.

And that article simply says that prisoners, whether they're POWs or not, have to be treated in a humane way. And if Congress were to bail on that provision, it would amount to repealing the McCain anti-torture amendment that was passed by Congress just last year.

Common Article III also requires that if prisoners are tried, they have to be tried by a regularly constituted court affording all judicial guarantees - and here I'm quoting - “Which are recognized as indispensable by civilized peoples.”

The Supreme Court found that the Bush military commissions didn't meet that very basic standard. And the question in this debate is, I suspect, going to be whether we really want to abandon that kind of a standard. And if we do, what it will make us look like to the rest of the world.

And I should say that this week in the Senate Judiciary Committee following the detainee treatment commission discussion, there's also going to be a confirmation hearing for William Haynes, who's the counsel for the Defense Department who was involved in the creating of these commissions and in the infamous torture memos. And so that's going to sort of underline these problems.

BRAND: Hm. Fascinating stuff. NPR legal affairs correspondent Nina Totenberg, thank you.

TOTENBERG: Thank you.

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