Wednesday, July 19, 2006


By William Fisher

The recent Supreme Court decision that U.S. President George W. Bush does not have the authority to try suspected terrorist detainees without statutory approval – and must adhere to the Geneva Convention’s prohibitions against torture – has opened a widening chasm among members of the president’s own party.

Pitted against one another in what is already shaping up as an increasingly contentious and bloody battle are Republicans who would like to see the Congress simply affirm what the president has been doing since the terrorist attacks of September 11th 2001, and other Republicans who are pushing for a set of clearer and fairer rules governing detention and interrogation.

Republicans who favor a change in the Administration’s policies and procedures are being joined by most Democrats. But neither political party is eager to take on this battle in an election year. Republicans fear the electoral impact of a public split in their ranks. And Democrats fear that voters will equate granting more due process and more humane treatment to alleged terrorists with “being soft on terror.”

But the poorly concealed back-story of this battle is a struggle for power between the President and the Executive Branch of Government on one hand and, on the other, the two houses of Congress that represent the Legislative Branch. The U.S. Constitution specifies that these two branches of government – along with a third branch, the Judiciary – are co-equals.

But many Congressional Republicans feel they have been systematically ignored by the White House since the beginning of the Bush Administration in 2000, and are determined to regain their power.

This determination is likely to affect not only prisoner detention and treatment, but also a number of other Administration programs that have been implemented by the President without approval by – or, in some cases, even knowledge of – Congress.

These include the National Security Agency’s (NSA) widespread wiretapping of American citizens allegedly speaking with members of Al Quaida overseas, and the NSA’s collection of millions of American citizens’ telephone records.

The Constitution specifies that searches of American citizens and seizure of their property cannot be carried out without a court finding of “probable cause” and a court-issued warrant. In 1978, Congress passed the Foreign Intelligence Surveillance Act, known as FISA, and established a special court to issue warrants for searches involving American citizens. In carrying out the NSA programs, the President publicly declared that no wiretaps were ever conducted without warrants, but in fact he ignored the FISA law, claiming “inherent authority” under the Constitution to protect the nation’s citizens in time of war. Many Constitutional scholars have questioned that authority.

The issue of prisoner detention and treatment was triggered by a Supreme Court decision late last month in a suit brought by a Guantanamo Bay detainee, Salim Ahmed Hamdan against Donald Rumsfeld, U.S. Secretary of Defense. The Court ruled 5-3 that the Yemeni detainee could not be tried by a special military commission established by the Administration without Congressional authorization. The court also held that the commissions violate the Geneva Conventions, especially the conventions' Common Article 3, which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."

A preview of the coming clash among Republicans, and between Republicans in the House of Representatives and the Senate was previewed during separate committee hearings last week.

Republicans on the powerful House Armed Service Committee indicated they were inclined to give the Bush administration largely what it wants in the
conduct of terrorism trials.

"This could be easy," said Rep. Candice S. Miller, a Michigan Republican, who proudly announced she has neither a law degree nor a college degree as she denounced the high court's 5 to 3 decision against the tribunals as "incredibly counterintuitive." "We could just ratify what the executive branch and the
[Department of Defense] have done and move on."

"That would be a very desirable way to proceed," said Daniel J. Dell'Orto, the
Pentagon's principal deputy general counsel, who set out the president’s position.

Rep. Duncan Hunter, a California Republican who chairs the House Committee has long been an advocate of the Bush administration's handling of detainees. He believes that the Pentagon has been too lenient with terror suspects, and has said, in "some cases we erred on the side of letting people go who we should not have let go." Hunter was referring to detainees released from the Guantanamo Bay military prison, which currently holds about 450 suspected terrorists.

Hunter said, "We have to give the executive the tools to fight this war. This is not a separation of powers issue. It is an issue of how to defeat the enemy."

The tone at this first House hearing was distinctly different from the next day’s hearing by the Senate Judiciary Committee, where lawmakers from both parties said they wanted to make significant changes to the White House's plans.

Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican who has made what he sees as excessive Executive Branch power a cause celebre, set off the fireworks by telling Dell'Orto and acting Assistant Attorney General Steven G. Bradbury, "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense."

Key Senate Republicans -- including Specter, Armed Services Committee Chairman John W. Warner of Virginia, Lindsey O. Graham of South Carolina, and John McCain of Arizona -- believe Congress should use the existing Uniform Code of Military Justice as a starting point and then adapt the rules that govern courts-martial to the war on terrorism.

But Dell'Orto told Senators that to do that and meet national security needs, 73 military rules of evidence and 145 to 150 articles of the Uniform Code of Military Justice would have to be amended, effectively "gutting" the military legal code.

However, there soon were signs that the administration was climbing down from its position. Sen. McCain announced that during a White House meeting involving Graham – who is a reserve military lawyer-- and national security adviser Stephen J. Hadley, an agreement was reached that legislation would use the military code -- not the administration's plan -- as the framework, and a final bill would adhere to Common Article 3 of the Geneva Conventions.

The bill could be based on a measure crafted by McCain last year to ban torture at U.S. detention facilities. While some minor changes might be required to conform to Common Article 3 of the Geneva Conventions, McCain said the legislation would remain faithful to the Conventions.

The McCain legislation was enacted last year after fierce opposition from the White House, led by Vice President Dick Cheney. President Bush signed it into law, but appended a “signing statement” essentially saying he would disregard the law when national security was at stake.

While Dell'Orto and Bradbury had quietly accepted the skepticism expressed in the Senate hearing, they let loose a salvo of their own in their appearance before the friendlier House Committee.

"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 he's got to
advise them of some rights before he takes a statement," Dell'Orto said. "I
don't want him to have to worry about filling out some form that is going to
support the chain of custody when he picks up a laptop computer that has the
contact information for all manner of cells around the world, while he's still
looking over his shoulder to see whether there's not an enemy coming in after

Democrats dismissed his statement as a hyperbolic red herring.

Meanwhile, Newsweek Magazine revealed that in 2002 a group of State Department lawyers warned that the Bush administration was inviting an enormous backlash, both from U.S. Courts and foreign allies, by denying terror suspects rights commonly given under U.S. law or the Geneva Conventions.

Newsweek wrote, "Even those terrorists captured in Afghanistan ... are entitled to the fundamental humane treatment standards of ... the Geneva Conventions," William Howard Taft IV, the State Department legal counselor wrote in a January 23, 2002 memo obtained by Newsweek. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions-known as Common Article 3, which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

As the week came to a close, Attorney General Alberto Gonzales told the Senate Judiciary Committee that the Defense Department had already issued a memorandum to the military requiring them to adhere to Common Article 3 of the Geneva Convention. He said he did not know whether the Central Intelligence Agency (CIA) – whose usually-secret detention facilities are also covered by the Supreme Court decision – had issued its own instructions.