Congress Finds Solution for Guantanamo Trials Elusive

Congress holds its third hearing in three days on the future of war crimes trials at Guantanamo Bay. The politicians are trying to find a way forward after the Supreme Court said President Bush's system of tribunals for Guantanamo detainees violates U.S. and international law.

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Congress today holds the third hearing in as many days into war crimes trials at Guantanamo Bay. Lawmakers are trying to find a way forward after the Supreme Court said the president's system violates U.S. and international law. Yesterday the House Armed Services Committee looked into the issue.

NPR's Ari Shapiro reports.

ARI SHAPIRO reporting:

There were two competing visions on display yesterday. The first came from Daniel Dell'Orto, of the Defense Department. He told the House Armed Services Committee that war crimes trials at Guantanamo can proceed almost immediately, if Congress just signs off on the president's system of tribunals. That's the system the Supreme Court rejected last month.

Mr. DANIEL DELL'ORTO (Deputy General Counsel, United States Department of Defense): All Congress need to do, assuming it has taken the opportunity to review the commission processes as currently configured, is to ratify that process, and we can move on very, very quickly.

SHAPIRO: Even with Congressional approval, the president's system of commissions could be overturned by the courts a second time. But Dell'Orto warned that the other option Congress is considering, a modified version of the Uniform Code of Military Justice, could put American troops in danger.

Mr. DELL'ORTO: I don't want a soldier, when he kicks down a door in a hut in Afghanistan, searching for Osama bin Laden, to have to worry about whether, when he does so, and questions the individuals he finds inside, who may or may not be bin Laden's bodyguards, or even that individual himself, to worry about whether he's got to advise them of some rights before he takes a statement.

Representative VIC SNYDER (Democrat, Arkansas): Who the hell is saying that? Nobody is saying that.

SHAPIRO: Democratic Congressman Vic Snyder of Arkansas.

Rep. SNYDER: Let's just declare that as a red herring. There's going to be nothing coming from any member of Congress that says we're going to have to have Miranda warnings on the battlefield, or chains of evidence as we normally think of them when we all watch Miami CSI.

SHAPIRO: Instead, Snyder and others said Congress could amend the Uniform Code of Military Justice to make it fit the needs of this war. Get rid of some pre-trial procedures, relax some rules of evidence, but still allow detainees a full and fair trial.

John Hutson is a retired Navy Judge Advocate General, and he is now dean of Franklin Pierce Law School.

Professor JOHN D. HUTSON (Franklin Pierce Law School): We shouldn't reverse-engineer the commissions, assuming that everybody's guilty and then create a commission that is geared to proving that point. We have to start at the beginning, and I would suggest we do that with the Uniform Code of Military Justice.

SHAPIRO: Hutson described the adjustment that would be needed as easy. But Democratic Congressman Robert Andrews of New Jersey said it starts to seem awfully difficult when you look at specifics. For example, Andrews asked Hutson, must detainees have a lawyer during interrogations?

Hutson said, if the interrogation is for prosecution, yes. If it's for intelligence, no. Andrews followed up.

Representative ROBERT E. ANDREWS (Democrat, New Jersey): If you ask the detainee whether he was part of conversations about a possible plot to blow up the Holland Tunnel, is that an interrogation for the purpose of prosecution, or is it an interrogation for the purpose of intelligence gathering?

Prof. HUTSON: Well, it depends, if you ask - you ask him two different times. One time you ask him, it is the intelligence inquiry, and the other time is the prosecution inquiry.

SHAPIRO: Steven Bradbury of the Justice Department jumped in.

Mr. STEVEN G. BRADBURY (Principal Deputy Assistant Attorney General): Congressman, if I may, I think this just illustrates, this would be entirely unworkable, I think. I think when we have detainees at Gitmo or elsewhere in the war on terror, we need for intelligence purposes to be able to question them in an unfettered way.

SHAPIRO: Members of the House Committee seemed sympathetic to some of the government's arguments. In contrast, members of the Senate Judiciary Committee were more skeptical when they heard from some of the same witnesses at a hearing on Monday.

Today, it's the Senate Armed Services Committee's turn. A panel of current and former Judge Advocates General will present the perspective from inside the Defense Department.

Ari Shapiro, NPR News, Washington.

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