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Guantanamo Detainees Rights Are Reexamined

July 24, 2006 at 6:35 PM EDT
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KWAME HOLMAN: When the Supreme Court struck down the
president’s plans for prosecuting military detainees last month, Mr. Bush said
he would abide by the ruling in crafting a new approach.

GEORGE W. BUSH, President of the United States: I will protect the
people and, at the same time, conform with the findings of the Supreme Court.

KWAME HOLMAN: However, in recent weeks it’s become clear
that the president wants the new policy to look very much like the old one,
born in the wake of the 9/11 attacks. Then, administration officials crafted a
legal strategy for combating a new type of soldier waging an unconventional
war.

GEORGE W. BUSH: The mind-set of war must change. It is a
different type of battle.

KWAME HOLMAN: The resulting doctrine made clear that, if
necessary, the campaign would be fought outside the constraints of existing
military law.

CONDOLEEZZA RICE, U.S. Secretary of State: These are not
prisoners of war because they don’t deserve that status.

KWAME HOLMAN: The administration decided that so-called
enemy combatants captured on the battlefield would not be protected by the
Geneva Conventions. Instead, specially-created military commissions would try
the detainees, where prosecutors could use hearsay evidence against them and a
jury of American service members could convict on the basis of secret evidence.

DONALD RUMSFELD, U.S. Secretary of Defense: Technically,
unlawful combatants do not have any rights under the Geneva Convention.

KWAME HOLMAN: But in the landmark decision, Hamdan v.
Rumsfeld, the Supreme Court struck down that system of military commissions,
citing several reasons: that the system was designed without the input of
Congress; that Common Article 3 of the Geneva Conventions requiring humane
treatment of detainees does apply; and that a clear legal framework for those
in military custody must be established.

The court decision forced President Bush to re-evaluate his
options on how to deal with the 1,000 detainees being held worldwide, including
450 still at Guantanamo
Bay. He either could
accept established forms of military justice, such as the courts martial
system, or try to persuade Congress to craft more acceptable rules for his
style of military commission.

GEORGE W. BUSH: The fundamental question is: How do we try
them? And so, in working with the Supreme Court — listening to the Supreme
Court, we’ll work with Congress to achieve that objective.

SEN. JOHN WARNER (D), Virginia: The eyes of the world are
upon us, and we must set the standards.

Justice vs. protection

KWAME HOLMAN: Over the past two weeks, Defense and JusticeDepartment lawyers dispatched by the White House to testify before Congressmade it clear the president objected to using the courts martial approach, partof the 56-year-old Uniform Code of Military Justice. They argued it would grantsuspected terrorists legal protections that could hinder counter-terroroperations.

Justice Department lawyer Stephen Bradbury.

STEPHEN BRADBURY, Acting Assistant Attorney General: If theproposition is, we have to try them, and convict them, and get them in prisonas a convicted war criminal first before we interrogate them to get viableintelligence, well, then we put America at risk and our soldiers at riskbecause we're not getting intelligence that we may need, and we may need itright now.

KWAME HOLMAN: Military law expert Eugene Fidell saidmilitary commissions give U.S.prosecutors much broader flexibility than in the courts martial system.

EUGENE FIDELL, National Institute of Military Justice: Theadministration wants to ensure that some kinds of information never comes tothe defendant himself. And they also like to prevent some kinds of informationfrom coming into the hands of defense counsel, civilian defense counsel.

There are circumstances under which they want to be able toexclude the defendant from the proceedings. There are circumstances under whichthey want to prevent a defendant in a military commission from defendinghimself.

KWAME HOLMAN: In Senate testimony last week, AttorneyGeneral Alberto Gonzales recommended Congress simply mandate by law the samemilitary commission system the president tried to create by edict.

ALBERTO GONZALES, U.S. Attorney General: The court remindedthe Congress and the president that, if this was a tool that we continue tobelieve was a necessary tool in fighting the war on terror, to pursuelegislation that would codify the procedures that we'd want to use.

KWAME HOLMAN: But the highest-ranking legal officers at thePentagon disagree.

SEN. CARL LEVIN (D), Michigan:Is it fair to say that none of you believe we should simply ratify the currentcommission and their procedures? Is that a fair statement, General Black?

COMMITTEE WITNESS: Yes, sir.

COMMITTEE WITNESS: Yes, sir, I think doing that would notfulfill Common Article 3.

SEN. CARL LEVIN: All right. General Rives?

COMMITTEE WITNESS: Yes, Senator. Clearly we need to...

SEN. CARL LEVIN: General?

COMMITTEE WITNESS: Yes, sir, absolutely.

KWAME HOLMAN: Instead, the Armed Forces lawyers argued theexisting rules for courts martial, governed by the Uniform Code of MilitaryJustice, should be the guide for a new tribunal system. Air Force JudgeAdvocate General Jack Rives...

MAJ. GEN. JACK RIVES, Judge Advocate General, U.S.Air Force: It provides a great system of criminal justice, one that's second tonone in the entire world.

A regrettable policy decision

KWAME HOLMAN: The split between uniformed legal officers andcivilian policymakers has existed since the war on terror began, according toEugene Fidell.

EUGENE FIDELL: Important decisions were being made bycivilians without the active involvement of the uniformed legal community. Ithink that lead to a good deal of angst.

KWAME HOLMAN: South Carolina Republican Lindsey Graham,himself a former Air Force lawyer, agreed that shutting the uniformed lawyersout of the original process led to regrettable policy decisions. He questionedGeneral Rives.

SEN. LINDSEY GRAHAM (R), South Carolina: As a matter of fact, you andother judge advocates strenuously objected it to the interrogation techniquesbeing proposed in December 2002 because you thought that it would violate theUCMJ, if our personnel engaged in those techniques. Is that correct?

MAJ. GEN. JACK RIVES: We had a number of objections, yes,sir.

KWAME HOLMAN: Rives and the other judge advocates generalhad warned the techniques constitutes torture under both domestic andinternational law.

SEN. LINDSEY GRAHAM: OK. The final product that came out inApril of 2003, did you ever see that product?

MAJ. GEN. JACK RIVES: I saw the April 2003 report about 14months after it was issued. No one in the Air Force JAG had seen it beforethen, to my knowledge.

KWAME HOLMAN: That final product condoned the interrogationof such unlawful combatants in a manner beyond that which may be applied to aprisoner of war, who is subject to the protections of the Geneva Conventions. Onlyafter the abuses at Abu Ghraib prison surfaced in the spring of 2004 did thatpolicy undergo heavy scrutiny.

Pentagon General Counsel William Haines helped draft it.

WILLIAM HAINES, PENTAGON GENERAL COUNSEL: ... and I deploreit, and I regret it, that it happened.

Prosecuting the enemy and military

KWAME HOLMAN: Democrat Dick Durbin said the policy hadmigrated into the conduct of U.S.soldiers and muddied the legal water surrounding interrogation to this day.

SEN. DICK DURBIN (D), Illinois: Mr. Haines, at Abu Ghraib,those images, which members of the Senate went up to watch in gruesome detail,hundreds and thousands of images, included the use of dogs, included forcedstanding, included nudity, the things which you approved in the memo you sentto the secretary of defense.

KWAME HOLMAN: The courts ruling in Hamdan has changed all ofthat. Within days, a Pentagon memo was released, conceding for the first timethat all detainees in U.S.custody must be afforded protections under the Geneva Conventions. But thatonly has added to the confusion over what guidelines soldiers in the field nowmust follow, says Texas Republican John Cornyn.

SEN. JOHN CORNYN (R), Texas:What does this tell our interrogators? What does this tell our militarypersonnel who are in charge of trying to obtain intelligence that can hopefullykeep, not only American civilians safe, but also our troops in the field? Tome, it seems like a recipe for disaster.

KWAME HOLMAN: And there also are concerns that othercountries might use the Hamdan decision as a legal basis to bring war crimescharges against U.S.personnel for their interrogation techniques.

EUGENE FIDELL: People may turn out to get prosecuted forthings that no one thought could lead to a prosecution at the time. We haven'thad prosecutions under the War Crimes Act. Now, what will happen in the future?Who knows?

KWAME HOLMAN: The Army's highest-ranking legal officer,General Scott Black, said it's up to Congress to provide that guidance.

MAJ. GEN. SCOTT BLACK, Judge Advocate General, U.S. Army: Ithink it will fall upon this body ultimately to help us resolve those issues.

KWAME HOLMAN: Suggestions from the military legalestablishment, a pending proposal from President Bush, and conflicting viewsamong lawmakers all will weigh on congressional leaders as they preparelegislation for consideration in early September.