WASHINGTON – Bush administration officials said Tuesday the Geneva Convention rules regarding the treatment of detainees would apply in the “war on terror” – a policy shift sparked by a recent Supreme Court ruling.
A memo by a senior Defense Department official released Tuesday urged department officials to review practices and ensure they are consistent with the Geneva Convention rules for prisoners of war.
Justice Department officials told the Senate Judiciary Committee that the policy reflects the Supreme Court's 5-3 decision in Hamdan v. Rumsfeld that military tribunals set up to try detainees at Guantanamo Bay are illegal.
The administration pledged to work with Congress to bring detainees to justice. However,administration officials,in their testimony Tuesday,urged Congress to move forward to create military commissions to try the prisoners.
“The decision in Hamdan gives the political branches an opportunity to work as one to re-establish the legitimate authority of the United States to rely on military commissions to bring the terrorist to justice,” Steven Bradbury,assistant attorney general,said in prepared remarks.
Senate Democrats and some Republicans balked at the suggestion that Congress move forward to affirm “illegal” military tribunals.
Sen. Arlen Specter R-Pa.,said that no legislation would give Bush a “blank check” to try detainees. He also urged the Bush administration to help establish a timeline so Congress could move forward with legislation.
The Supreme Court decision is “another major rebuke to an administration that has too often disregarded the law” and passing legislation to promote military tribunals would be a “grave mistake,” Sen. Russ Feingold,D-Wis.,said.
Democrats,including Sen. Joe Biden,D-Del.,recommended that Congress establish a judicial process using the Uniform Code of Military Justice,which outlines the criminal rights of soldiers in trial-like procedures called courts-martial.
Taking the code as the “basic guide,” Congress can “work through the document” and “change the rules as needed,” Biden said.
Daniel Dell'Orto,of the Defense Department's general counsel's office,strongly opposed tribunals structured too much like courts-martial because they would afford detainees in the “war on terror” with more rights than the average U.S. citizen.
“Legal counsel is provided without cost,” for everyone,not just the poor,and “the rights to counsel and against self-incrimination are afforded earlier,” he said.
“The court-martial process allows open and full discovery of the government's information by the accused,” he said.
Sen. Orin Hatch,R-Utah,who was receptive to the administration's arguments,warned that in such a process,“classified information could fall into the hands of terrorist.”
Dell'Orto also added that asking soldiers to take on duties performed by police officers such as collecting evidence and testimony and reading defendants their legal rights “would not only distract from their mission,but endanger their lives as well.”
The Supreme Court ruling last month said the president must comply with the rights afforded to detainees under the Geneva Convention and said Bush would have to work with Congress to legislate a new judicial procedure.
“Subject to constitutional limitations,Congress has the power and responsibility to determine the necessity for military courts,and to provide the jurisdiction and procedures applicable to them,” Justice Anthony Kennedy wrote in his opinion concurring with the majority.
Sen. Patrick Leahy,D-Vt.,called the ruling a “triumph for our constitutional system of checks and balances” and insisted it was a rebuke to administrations policy to “go it alone” “instead of acting in unity” with congressional authority.
The administration has “violated fundamental American values,damaged our international reputation,and delayed and weakened prosecution of the war on terror – not because of any coherent strategic view that it had,but because of its stubborn unilateralism and dangerous theory of unfettered executive power,” he said in prepared remarks.