Wednesday, July 12, 2006

Bush asks Congress not to scrap tribunals

Bush asks Congress not to scrap tribunals
By David Stout and John O'Neil
Copyright by The New York Times
Published: July 11, 2006

WASHINGTON The Bush administration called Tuesday for Congress to fix, rather than scrap, the system of military tribunals struck down by the Supreme Court last month, while the Pentagon pledged to treat detainees in accordance with the Geneva conventions as the court required.

But a key Republican senator warned that the administration was risking a "long, hot summer" if it pushed Congress to retain the tribunal system for the suspects now held at the detention center in Guantánamo Bay, Cuba, instead of working to adapt traditional military courts to meet the demands of the war on terror.

The new Pentagon policy, outlined in a memo released Tuesday, and the proposal for modifying military tribunals, outlined in testimony before a Senate panel, represent the administration's most detailed response to the Supreme Court ruling, which declared that the tribunals were illegal. The court ruling contradicted President George W. Bush's assertion that terror suspects were not entitled to protections under the Geneva conventions.

Bush said last week that he "would comply" with the court's ruling, but he has given no details of how he would do so.
On Tuesday, Pentagon officials released a memo that had been issued Friday, ordering that all detainees be treated in compliance with Article 3 of the Geneva conventions, which requires humane treatment and a minimum standard of judicial protections.

The White House spokesman, Tony Snow, said Tuesday that the Pentagon memo was "not really a reversal of policy," since detainees were already being treated humanely.

A top Pentagon lawyer also insisted, in testimony before the Senate Judiciary Committee on Tuesday, that the memo "doesn't indicate a shift in policy."

"It just announces the decision of the court and with specificity as to the decision as it related to the commission process," Daniel Dell'Orto, principal deputy counsel for the Defense Department, told the committee.

Pentagon officials also told reporters that the memo represented an affirmation of a duty that was already being met voluntarily.

But before the court's ruling, the administration had repeatedly denied that suspects held in Guantánamo were covered by Article 3.

Dell'Orto said military commissions, as opposed to courts-martial, were the best vehicle to process detainees. He said a common misunderstanding about courts-martial is that they offer the accused less protection than would be obtained in a civilian court.

"But the opposite is actually true," Dell'Orto testified. For example, he said, free legal counsel is provided in a court-martial for all defendants, not just those who are poor, and protection against self-incrimination takes effect earlier than in civilian prosecutions.

But the main reason not to use courts-martial to try detainees is one of military necessity, he said. "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," he testified.

Early in his testimony, Dell'Orto sought to deflate any suggestion that military tribunals were somehow alien to American tradition. "The United States military has convened criminal tribunals other than courts-martial since the days of the very first commander in chief, George Washington," he said.

Concerning a replacement for the tribunals, Snow said the administration intended to work with Congress to devise a system of justice for terror suspects, as the court had required. At the Senate Judiciary Committee hearing, Steven Bradbury, a Justice Department official, made a similar promise. "All the issues with military commissions identified by the Supreme Court can be addressed and resolved through legislation," he said.

Bradbury agreed with Dell'Orto that traditional military courts offered such strong protections to defendants as to make them worthless in the fight against terrorism.

Soldiers coming upon suspected Qaeda members on a battlefield in Afghanistan would have to inform them immediately of their rights, and cease questioning if they requested lawyers, he said.

"You're not going to get much out of them at that point," Bradbury said.

Senator Orrin Hatch, a Utah Republican, responded that such a requirement "could make the difference between whether thousands die or not." But Bradbury's arguments were met with skepticism from some Republicans as well as Democrats.
Senator Lindsey Graham of South Carolina, a Republican who has taken the lead on several issues related to treatment of detainees, told Bradbury bluntly that the administration would get much farther by seeking changes in traditional courts-martial to allow looser hearsay rules and other exceptions for classified information.

By pursuing modifications to the established code of military justice, "we can end up with a system we can all be proud of," said Graham, a former military prosecutor. But pushing to hang on to tribunals by making a few changes would mean the administration is in for "a long, hot summer" on the issue, he said.

The committee's chairman, Senator Arlen Specter of Pennsylvania, a former prosecutor, also told Bradbury that the administration would not get "a blank check" in any legislation on the subject.

Committee Republicans seemed generally receptive to the testimony of Dell'Orto and Bradbury. For instance, Senator Jeff Sessions of Alabama, suggested that it would be entirely impractical for soldiers in combat conditions to function as police officers.

"Soldiers who got out and kick in a door and find bomb materials and information that implicates a certain person - they're not police officers, they don't maintain chain of custody like the average police officer is trained to do," Sessions said.
"That's absolutely correct, Senator," Dell'Orto agreed.

But Democrats were less friendly, and used the hearing to revive past criticisms of the Bush administration.
Senator Patrick Leahy of Vermont, the panel's ranking Democrat, said the administration had been high-handed from the start in setting up military tribunals without the co-operation of Congress, thus making them of questionable legitimacy. "Is there any admission on the part of the Bush-Cheney administration that perhaps they were wrong?" the senator asked Bradbury.

Bradbury replied that, historically, the executive branch had always exercised the authority to establish tribunals "in time of war and armed conflict."

"Now with 20-20 hindsight, obviously we are where we are," Bradbury said. "The court has now spoken. It is now incumbent, we think, on both political branches to get together. We very much want to work with you."
Another Democrat, Senator Joseph Biden Jr. of Delaware, also took the opportunity to criticize Bush and the tribunal system devised by the administration.

"I find it difficult for us to buy in to the notion that let's just trust the president's judgment," Biden said. "God love him, his judgment has been terrible."

John O'Neil reported from New York. Eric Schmitt and Mark Mazzetti contributed reporting from Washington.


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