Battle Looms In Congress Over Military Tribunals

By Jonathan Weisman
Washington Post Staff Writer
Thursday, July 13, 2006; A06

House Republicans signaled a coming clash with the Senate over the future of military tribunals yesterday when Armed Service Committee members indicated they were inclined to give the Bush administration largely what it wants in the conduct of terrorism trials.

The tone at the first House hearing since the Supreme Court tossed out President Bush's tribunals last month was markedly different from Tuesday's Senate hearing, where lawmakers from both parties said they wanted to make significant changes to the White House's plans.

"This could be easy," said Rep. Candice S. Miller (R-Mich.), 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.

Contrast that with Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who told Dell'Orto and acting Assistant Attorney General Steven G. Bradbury the previous day, "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense."

At the root of the dispute are differing interpretations about the Supreme Court's mandate when it ruled June 29 that a Yemeni detainee at the military prison in Guantanamo Bay, Cuba, could not be tried by a special military commission established by the administration. The court held that the commissions violate U.S. law and the Geneva Conventions, especially the conventions' Common Article 3, which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."

Administration officials asserted yesterday that the court found no real problems with the tribunal rules, only that those rules need to be voted into law by Congress. Dell'Orto and Bradbury maintain -- and most House Armed Services Republicans agree -- that Congress should start with the administration's system, make a few minor changes, then pass a law creating the tribunals.

Dell'Orto and Bradbury had respectfully accepted senators' skepticism Tuesday, but before a friendlier Republican audience yesterday, they turned pugnacious in their defense of the administration's plan.

"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 him."

Democrats dismissed such assertions as hyperbolic "red herrings," but Republicans played along. "It may not be practical on the battlefield to read the enemy their Miranda warnings," said House Armed Services Committee Chairman Duncan Hunter (R-Calif.). "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."

Key Senate Republicans -- including Specter, Armed Services Chairman John W. Warner (Va.); Lindsey O. Graham (S.C.), a reserve military lawyer; and John McCain (Ariz.) -- say Congress should start with the existing Uniform Code of Military Justice and the rules that govern courts-martial, then adapt them to the war on terrorism.

Dell'Orto said 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.

But McCain said yesterday that at a long White House meeting, with Graham 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 adopt language crafted by McCain last year to ban torture at U.S. detention facilities that makes some changes to Common Article 3. For instance, it could drop the phrase "outrages upon personal dignity," which the administration sees as overly vague. But McCain said the legislation would remain faithful to the conventions.

"We're moving along very well," he said.

The problem may be the House, which has taken a harder line and clashed repeatedly with the Senate over immigration legislation, McCain's torture ban, renewal of the USA Patriot Act and budget priorities. Rep. Barney Frank (D-Mass.) called House-Senate tension "the main dynamic of Congress this year."

"The House thinks the Senate is the cowardly lion, and the Senate thinks the House is the scarecrow without a brain," he said.

Hunter said he "instinctively" sees a problem with using the military justice code -- "a body of law meant to extend privileges to the men and women who wear the uniform of the United States" -- as the basis for trying suspects in the war on terrorism.

Rep. Joel Hefley (R-Colo.), an Armed Services Committee member who favors using the administration's tribunal plan, said an ugly clash with the Senate appears inevitable.

"As I sat there [in the hearing], I found myself struggling with whether we're going to be able to get anything done this year," Hefley said. As the election approaches, senators and House members from both parties will "demagogue this issue," he said, accusing opponents of being either soft on terrorism or lap dogs of the White House.

Staff writer Thomas E. Ricks contributed to this report.

© 2007 The Washington Post Company