Senators Discuss Trials for Guantanamo Detainees The Senate Judiciary Committee holds a hearing to discuss how to try Guantanamo detainees accused of war crimes. The Supreme Court has ruled that the special commissions proposed by the Bush administration are not sufficient.
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Senators Discuss Trials for Guantanamo Detainees

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Senators Discuss Trials for Guantanamo Detainees


Senators Discuss Trials for Guantanamo Detainees

Senators Discuss Trials for Guantanamo Detainees

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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The Senate Judiciary Committee holds a hearing to discuss how to try Guantanamo detainees accused of war crimes. The Supreme Court has ruled that the special commissions proposed by the Bush administration are not sufficient.


And as we just heard, the Senate today, began in earnest to explore exactly how the Guantanamo detainees should be tried. The Supreme Court has said President Bush's system of military commissions violates U.S. and international law. Now, Congress is trying to fix the problem. NPR's Ari Shapiro reports on today's hearing in the Senate Judiciary Committee.

ARI SHAPIRO reporting:

Lieutenant Commander Charles Swift was a defense lawyer for Guantanamo detainees. Sitting before the Senate Judiciary Committee, he described some of the ways the commissions at Guantanamo Bay differed from civilian trials. He said defense lawyers at Guantanamo couldn't call witnesses, or have statements made under torture, dismissed. His team couldn't access evidence that might prove the detainee's innocence. In short, he said, he and his colleagues weren't able to provide a real defense, at all.

Lieutenant Commander CHARLES SWIFT (Attorney, Guantanamo Bay Detainees): The disregard for the principals of justice in the commissions, has increasingly put members of the Chief Defense Counsel's office in the position, where they would either violate ethical requirements incumbent on their practice of law, or face criminal charges for the violation of military orders. To do one's job in an ethical manner, should not require a military attorney to risk criminal sanction.

SHAPIRO: For that reason, Swift urged Congress to create a system of tribunals that complies with the Uniform Code of Military Justice. But Daniel Dell'Orto, who represented the Defense Department at the hearing, said the established military justice system, with its guarantees of defendant rights, will not work for the detainees at Guantanamo Bay.

Mr. DANIEL DELL'ORTO (Attorney, U.S. Defense Department): Asking our fighting men and women to take on additional duties traditionally performed by police officers, detectives, evidence custodians, and prosecutors, would not only distract from their mission, but endanger their lives, as well.

SHAPIRO: He said the military would essentially have to fight al-Qaida twice, once on the battlefield, and again in the courtroom. He said it's simply not workable to call witnesses from Iraq and Afghanistan, or to produce evidence that came from a raid on an insurgent hideout. He urged Congress to pass a law giving the president authority to write the rules for these trials. Judiciary Committee Chairman Arlen Specter said that's not likely to happen.

Senator ARLEN SPECTER (Republican, Pennsylvania): We're not going to leave it to the Department of Defense or give the Department of Defense a blank check. We're going to establish the standards and the policy, but we want your input before we do it.

SHAPIRO: Specter gave the Defense Department and the Justice Department two weeks to provide a detailed description of how they think a new system of military tribunals ought to look - when detainees should get a lawyer, whether coerced confession should be allowed, and what the standard of proof should be for a conviction. Democrat Charles Schumer of New York, demanded to know why the Justice Department hasn't formally reexamined many of its other wartime policies, in light of the Supreme Court's ruling that the White House overreached on its detainee trial policy.

Senator CHARLES SCHUMER (Democrat, New York): Why doesn't the administration take a more formal process and review it, to avoid this happening again? This makes me think - you know, everyone makes mistakes. But when you've made a lollapalooza like this one, and then you say, business as usual - I get worried.

SHAPIRO: The Justice Department's witness, Steve Bradbury, said his office constantly reviews legal policies in light of court rulings and this Supreme Court ruling is not different. Republican Senator Lindsey Graham, of South Carolina, said he'd rather look forward. Graham was a military lawyer in the Persian Gulf War, and he said he believes the Uniform Code of Military Justice is the best jumping-off point for a new detainee policy. And, he said, if the new policy for detainee trials differs from the UCMJ:

Senator LINDSEY GRAHAM (Republican, South Carolina): You need to show why the changes were made. Convenience is not enough. And you have to prove, through some legislative history, that a practical application of the Uniform Code of Military Justice to a terrorist suspect, is inappropriate.

SHAPIRO: He said, if the administration goes along with that approach, the product will be a system that can withstand court scrutiny. If the administration does not cooperate, Graham said, it could be a long, hot summer. Ari Shapiro, NPR News, Washington.

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Q & A: Congress Debates Detainee Trials

Congress begins debate this week on how to try detainees held at the U.S. prison camp at Guantanamo Bay, Cuba. The hearings come in the wake of a Supreme Court ruling that struck down the secret military tribunals set up by the Bush administration.

The high court found that the president lacked the legislative authority to set up the commissions, which severely limited the rights of the accused. The justices said the commissions violated the U.S. Constitution, as well as domestic and international law.

The issue now before legislators is to what extent terrorism suspects should be offered fair-trial protections. Below, a look at the debate:

Q: Can Congress simply pass a law giving the president the authority to establish commissions in any manner he wishes, essentially overruling the Supreme Court?

Congress could certainly pass such a law, but it's not clear it would pass muster at the Supreme Court. The resulting trials could be struck down all over again.

The Supreme Court has said that any trials must meet some basic legal standards. For example, the Bush commissions allowed evidence obtained by coercion. The Supreme Court said that violated the Geneva Conventions.

To cite another example, the Bush commissions had no independent judges running the trials and no independent review. Instead, the commissions gave the president final review of all outcomes for fairness. That violated the Uniform Code of Military Justice, according to the Supreme Court. The justices also implied that, even if such commissions were to be authorized by Congress, they still might not be tolerated. So, it would be difficult for Congress simply to provide retroactive authorization for the commissions as originally put forth by the president.

Q: There's also been a lot of discussion about the global reputation of the United States and how it has suffered in light of these trials. Will that figure into the hearings?

Some in Congress see the hearings as an opportunity to recapture some of the reputation that the U.S. has lost over Guantanamo. Others want to pass a law making it clear that the Geneva Conventions' protections do not apply to these prisoners.

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 3 of the Geneva Conventions, which applies to everyone in a conflict, civilians and military alike. That article says that prisoners — whether or not they are prisoners-of-war — have to be treated in a humane way. If Congress were to bail on that provision, it would amount to repealing the McCain anti-torture amendment that was passed last year.

Common Article 3 also requires that if prisoners are tried, they have to be tried by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The Supreme Court found that the Bush commissions didn't meet that basic standard. The question in this debate is whether the United States really wants to abandon that standard — and if it does, how that will look to the rest of the world.

Q: Who are the major congressional players in these hearings?

Three different congressional panels will be holding hearings on crafting trials for Guantanamo detainees: The House Armed Services Committee, the Senate Judiciary Committee, and the Senate Armed Services Committee.

The real action is likely to come from that last panel, which is chaired by Sen. John Warner. Last winter, Warner helped push through legislation that banned the use of torture on detainees. Other members of the Armed Services Committee include Sen. John McCain, who introduced the torture ban, and Sen. Lindsey Graham, a former military lawyer who has called for tribunal procedures that are more in line with existing standards for military tribunals.

For the Democrats, Sen. Carl Levin of Michigan is likely to emerge as a key player.

Q: Reports suggest Republicans are not unified on this issue. Where is the divide?

There are some Republicans who want to just pass a law codifying the system that was struck down by the Supreme Court. Other Republicans want to tweak the existing court-martial system.

Ironically, five years ago, the Democrats and some Republicans — like Sen. Graham and Judiciary Committee Chairman Arlen Specter — tried to enlist the Bush administration in writing a military tribunal law. But the administration rebuffed all those efforts, contending that it had the unilateral power to establish these commissions. Now, five years later, obviously the administration has a lot less bargaining power.

Q: Where do the Democrats stand on this issue?

Some Republicans have made it clear that they want to use the detainee trials as an election issue. Frankly, Democrats are worried that they'll be painted as weak on terrorism. That's why those in the middle — McCain, Warner, Graham, Specter — are going to play such a central role in the debate.