It's Bush's Way or the Highway on Guantanamo Bay

By Dana Milbank
Wednesday, July 12, 2006

As Congress opened hearings yesterday on the treatment of terrorism detainees, the Bush administration's view was neatly summarized by Steven Bradbury, the Justice Department lawyer serving as lead witness. "The president," Bradbury said, "is always right."

Two weeks ago, the Supreme Court rebuked the administration by rejecting military tribunals for prisoners at Guantanamo Bay, Cuba, and forcing President Bush to get approval from Congress. But the officials who came before the Senate Judiciary Committee yesterday -- Bradbury and Pentagon lawyer Daniel Dell'Orto -- were unrepentant.

"Surprising and disappointing . . . without historical analogue" was Bradbury's view of the high court's ruling on the Hamdan case.

Rather than regard it as a defeat, Bradbury said it presents Bush with an "opportunity to work together" with Congress.

The ranking Democrat, Patrick Leahy (Vt.), fished for any admission that the administration's legal view had been wrong. Bradbury retorted: "It was completely reasonable."

When Lindsey Graham (R-S.C.) suggested a framework for future tribunals, Dell'Orto cut him down. "I have many concerns about taking that approach," he said.

The witnesses were even dismissive of the new Pentagon memo applying the Geneva Conventions to all detainees for the first time. "It doesn't indicate a shift in policy," Dell'Orto said.

And in a veiled warning, Bradbury told Herb Kohl (D-Wis.) that Bush still didn't need Congress. "The court did leave open the theoretical possibility that the president could come back on his own," he said.

It was an aggressive performance for an administration that wants Congress to create a new legal system to deal with the 1,000 terrorism suspects in custody. But administration officials are confident that the legislative branch will do the White House's bidding -- in part because lawmakers who oppose Bush's wishes can be accused of coddling terrorists.

At the center of this calculation is Judiciary Chairman Arlen Specter (R-Pa.), who introduced legislation on the subject and called the hearing almost immediately after the Hamdan decision. "The Constitution is explicit," he declared at the start of the hearing, "that the Congress has the authority, responsibility to establish the rules of trials on capture on land or sea."

But Specter, while known for such tough talk, has been repeatedly thwarted by the administration or Republican congressional leaders on wiretapping, immigration, abortion rights and same-sex marriage. The administration lawyers didn't show much fear of Specter yesterday, either, when the chairman asked them to provide thoughts on his legislation within two weeks.

"Only the president has the decision to introduce legislation," Bradbury reminded Specter. "I cannot commit as I sit here now that the administration will submit a particular bill."

Specter made a tight smile. "How much evidence should be presented to key people detained in Guantanamo in enemy combatant status?" he queried.

"That's a policy question," Bradbury rejoined, sitting on the edge of his chair.

Specter, irritated, furrowed his brow. "What's your recommendation to Congress to establish the policy?"

Bradbury replied that the matter "should be left up to the Department of Defense."

This prompted a harangue from the chairman. "We're not going to leave it to the Department of Defense or give the Department of Defense a blank check," he said.

Specter should have known he was in trouble when Bradbury ignored the five-minute time limit for opening statements, prompting the chairman to ask, "How much longer will you require?" In the end, Specter let the witnesses have the last word; he had been summoned to the White House. "I'm going to have to excuse myself," the chairman said less than two hours into the proceedings, handing the gavel to Orrin Hatch (R-Utah).

Specter did get one measure of revenge. Early in the session, two women from the left-wing group Code Pink raised signs in the press section demanding: "CLOSE GUANTANAMO." Police stepped in to remove the activists, but Specter whispered instructions to an aide, who told the cops to stand down.

Still, the administration may be correct that lawmakers won't defy Bush on the tribunals. Democrats seemed more eager to talk about other things. Russell Feingold (Wis.) spoke about the wiretapping program, while Joseph Biden (Del.) announced his seventh trip to Iraq. "I'm telling you guys, things ain't good in Happy Valley," he said. Leahy snuck in the word "cockamamie," while Charles Schumer (N.Y.) countered with "lollapalooza."

But Bradbury and Dell'Orto may also have noticed that they were getting less than a full defense from the GOP side. When Bradbury rejected Graham's approach to the tribunals, Graham issued a warning. "If you fight that approach, it's going to be a long, hot summer," he told Bradbury.

When Dell'Orto repeated Bradbury's defiance in a later round of questions, Graham raised his voice. "You didn't consult with us when you created the military commissions," he said. "I'm not going to respond to some product that was enacted without any consultation."

Hatch, wielding Specter's gavel, quickly ended the session and dismissed the witnesses. Graham shook his head and rolled his eyes.