By R. Jeffrey Smith and Jonathan Weisman
Washington Post Staff Writers
Friday, July 14, 2006; A04
Three days of congressional testimony this week by senior Bush administration officials about U.S. treatment of detainees in the war on terrorism have made clear that the administration remains deeply divided on the issue and unsure how to replace a key policy that the Supreme Court declared illegal two weeks ago.
Interagency divisions normally kept hidden from public view have been on unusual display as officials from the Justice Department and the Pentagon have offered starkly different accounts of the administration's reaction to the court's opinion, baffling members of Congress and other interested parties about U.S. intentions.
The testimony has shown that the Justice Department -- which had insisted on the legality of the existing policy -- is eager to sharply limit the impact of the Supreme Court's decision, while military lawyers and some other Pentagon officials are celebrating it as a vindication of their long-held concerns about U.S. detainee policy.
The conflicting testimony followed Tuesday's announcement of a Pentagon policy to follow Geneva Conventions requirements granting basic human and legal protections to all terrorism suspects in U.S. custody. Several members of Congress said they had been told that the dispute will not be resolved for some time.
At issue is how to repair the hole blown in administration policy by the Supreme Court's double-barreled June 29 critique of orders signed by Bush in 2001 and 2002. The Bush orders held that terrorism suspects are not subject to the protections of an international treaty governing wartime detentions because they are not part of a regular army. They also established a system of military tribunals to assess detainees' guilt and mete out punishments.
The court held that, contrary to Bush's orders, the government must heed the demands of a 56-year-old international treaty, Common Article 3 of the Geneva Conventions, that detainees "shall in all circumstances be treated humanely" and without "outrages upon personal dignity" such as humiliating and degrading treatment -- even though the suspects are not regular soldiers and may routinely mistreat their own captured soldiers. It also said the military tribunals, as formulated by the Pentagon under White House guidance, were illegal.
Senate Armed Services Committee chairman John W. Warner (R-Va.), who yesterday opened a series of congressional hearings meant to produce new legislation on the issue, said at the outset that "the eyes of the world are upon us, and we must set the standards."
But Warner added that National Security Adviser Stephen J. Hadley and White House legal counsel Harriet Miers told him recently that "there were some honest differences . . . as to approach within the administration," and no uniform position will be reached before next week.
The dispute now being waged over detainee treatment is the latest flowering of tensions that have persisted for more than three years, as officials from different departments have tried to reconcile a long history of U.S. support for humane treatment of detainees with pressures to use extraordinary means to acquire intelligence from suspected terrorists who might pose large risks to civilians.
Some of the administration's more conservative appointees, including Steven G. Bradbury, the Justice Department Office of Legal Counsel's acting chief, have been openly scornful of the Supreme Court's opinion, and suggested writing new legislation that would narrowly construe U.S. detainee treatment obligations and clearly exempt U.S. personnel from criminal liability if they violate Common Article 3.
Other officials, including top military lawyers at the Defense Department who testified at Warner's hearing yesterday and policymakers at the State Department, have solidly backed the Supreme Court's decision that previous administration legal reasoning on the issue -- supported by Chief Justice John G. Roberts while serving on an appellate court in a June 2005 opinion -- was "erroneous."
"I do agree with the reinforcement of the message that Common Article 3 is a baseline standard. And I would say that, at least in the United States Army -- and I'm confident in the other services -- we've been training to that standard and living to that standard since the beginning of our Army, and we continue to do so," said Major Gen. Scott C. Black, judge advocate general of the Army.
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.