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Policy Rewrite Reveals Rift in Administration
Black's testimony contrasted with Bradbury's testimony before House and Senate committees on Tuesday and Wednesday that the Supreme Court had overturned a U.S. detainee policy that the administration considered settled in 2002 and reaffirmed in legislation passed last year that was meant to obviate any Supreme Court objections.
"The United States has never before applied Common Article 3 in the context of an armed conflict with international terrorists," Bradbury complained, adding that this was not foreseen by those who drafted the Geneva Conventions. The "application of Common Article 3 will create a degree of uncertainty for those who fight to defend us from terrorist attack," raising the possibility of felony prosecution for violators, Bradbury said.
Bradbury also expressed concern that foreign interpretations of the meaning of Article 3 might unduly hamper U.S. conduct and urged legislation that would insulate the government from that consequence. The military lawyers, in contrast, testified that it was appropriate to consider foreign interpretations and that U.S. conduct must in any event follow a higher standard of conduct than other nations.
Sen. Lindsey O. Graham (R-S.C.) said in an interview that he is optimistic that a consensus will be formed on new legislation. "The current situation is terrible," he said. "We don't have the legal infrastructure in place that will effectively prosecute people, and our image has suffered."
Senate Majority Leader Bill Frist (R-Tenn.) said he still believes tribunal legislation could be ready for passage by early September. Indeed, House Armed Services Committee Chairman Duncan Hunter (R-Calif.) said a quick compromise based on the president's initial tribunal structure could be amended to the annual defense policy bill and passed before the August recess.
But Hunter said administration officials asked him to slow down the process to allow for more deliberation. "At end of the day, the administration isn't going to say, 'Let's bet on a 50-50 proposition on tribunals and hope it doesn't get struck down again' " by the Supreme Court, said a senior Senate Republican aide. "They will want this to hold."
Several members of Congress expressed concern that political posturing on the issue will become fierce in the meantime.
The Republican aide complained in particular about testimony Wednesday by Daniel J. Dell'Orto, the Pentagon's principal deputy general counsel, who complained about soldiers having to read Miranda rights when they knock down doors in Afghanistan or fill out paperwork before seizing a laptop computer.
Similar concerns about "Miranda" warnings were expressed yesterday by White House spokeswoman Dana Perino while traveling with Bush in Germany en route to the Group of Eight summit in Russia.
But Graham said rhetoric involving Miranda was inappropriate because the policy at issue primarily concerns how to conduct interrogations of detainees.
Staff writer Peter Baker in Germany contributed to this report.