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President Asks Congress to Authorize Tribunals for Detainees

September 6, 2006 at 6:10 PM EDT
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JIM LEHRER: And the president’s terrorist announcement, Ray Suarez has our story.

RAY SUAREZ: President Bush defended the previously secret CIA program to imprison and interrogate high-level al-Qaida detainees captured early in the war on terror. Today was the first time he spoke of it publicly.

GEORGE W. BUSH, President of the United States: This program has been and remains one of the most vital tools in our war against the terrorists. It is invaluable to America and to our allies. Were it not for this program, our intelligence community believes that al-Qaida and its allies would have succeeded in launching another attack against the American homeland. By giving us information about terrorist plans we could not get anywhere else, this program has saved innocent lives.

This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers. They have determined it complied with our laws.

RAY SUAREZ: The president also announced, he was sending to Congress new rules for military tribunals to try hundreds of detainees being held at Guantanamo Bay.

Among his audience in the White House East Room were family members of 9/11 victims.

BUSH: We’re now approaching the five-year anniversary of the 9/11 attacks. And the families of those murdered that day have waited patiently for justice. Some of the families are with us today. They should have to wait no longer.

So, I’m announcing today that Khalid Shaikh Mohammed, Abu Zubaydah, Ramzi Binalshibh, and 11 other terrorists in CIA custody have been transferred to the United States naval base at Guantanamo Bay.

BUSH: They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice.

With these prosecutions, we will send a clear message to those who kill Americans. No longer — how long it takes, we will find you and we will bring you to justice.

RAY SUAREZ: The Bush administration’s original plan, to try detainees in military tribunals, was struck down by the Supreme Court in June. A majority of justices ruled, the tribunals needed to abide by the rules of the Geneva Conventions and be authorized by Congress.

BUSH: Some ask, why are you acknowledging this program now?

There are two reasons why I’m making these limited disclosures today.

First, we have largely completed our questioning of the men. And, to start the process for bringing them to trial, we must bring them into the open.

Second, the Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the court determined that a provision of the Geneva Conventions known as Common Article 3 applies to our war with al-Qaida.

This article includes provisions that prohibit — prohibit outrages upon personal dignity and humiliating and — and degrading treatment. The problem is that these and other provisions of Common Article 3 are vague and undefined.

And each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk for prosecution under the War Crimes Act, simply for doing their jobs in a thorough and professional way.

This is unacceptable.

RAY SUAREZ: Congress plans to take up Mr. Bush’s legislative proposals next week.

In the public eye

Eugene Fidell
Institute of Military Justice
The ghost detainees, people who have been outside the reach of the International Committee of the Red Cross, people who have been the subject of the renditions that we have heard about here and elsewhere, these things have been extremely troubling.

RAY SUAREZ: Now, some analysis of today's announcements on suspected terrorist detainees from Brad Berenson -- he was associate counsel to President Bush from 2001 to 2003 -- and from Eugene Fidell -- he is president of the National Institute of Military Justice.

Brad Berenson, what's the significance of acknowledging the existence of the CIA detention network, and, at the same time, sending 14 of its most notorious inmates to Guantanamo for trial?

BRAD BERENSON, Former Associate White House Counsel: I think that the -- the larger significance of this is that the administration is finally fighting back in the public arena.

Finally, it has decided that it needs to expose to public view previously classified information about what it has been doing, to whom, and exactly what dividends that's been paying, in terms of public safety and -- and the war effort.

And I think that's because of a perception in the administration that, over the last few years, they have been taking a beating in the international community and, frankly, domestically as well, in part because they have had to fight with one hand tied behind their back.

Because all of this information has previously been classified, it has really been difficult for them to demonstrate that the programs the president has put in place are not simply some sort of power grab by the executive; they're not pretextual; but, really, they are at the heart of what has kept us safe since 9/11; they have produced tangible successes; and that they are vitally necessary for continuing to fight the war.

And I think this is sort of a coming-out party for the administration, where it is now engaging in the public -- in the public debate over this more robustly than it has.

RAY SUAREZ: Eugene Fidell, a coming-out party?

EUGENE FIDELL, PRESIDENT, INSTITUTE OF MILITARY JUSTICE: I -- I don't think I would have used that phrase.

I think that what the administration has done is tried to grab or -- or take control of the conversation, in ways that it hasn't been able to over the last several years, for a variety of reasons. Whether this is more than a sort of rhetorical restructuring of -- of the debate remains to be seen, in my mind.

The administration has taken a terrible beating, as Brad indicated, overseas. Within the country, there's been a lot of consternation, across the political spectrum, about the way events have unfolded. The ghost detainees, people who have been outside the reach of the International Committee of the Red Cross, people who have been the subject of the renditions that we have heard about here and elsewhere, these things have been extremely troubling.

And I think one of the good things that can be said about today's announcement is at least there's something of a clean breast being made of the subject. The question now is, what happens next? What does Congress do? And what do the courts do?

RAY SUAREZ: But you also heard Brad Berenson say a moment ago that the upshot of this legal push against the administration was that it was fighting the war against terrorism with one hand tied behind its back.

EUGENE FIDELL: I don't agree with that at all. I think nothing has prevented the administration from putting its case out aggressively.

I think it's done that. I don't think it's been particularly effective about it, but it can't say that its hands were tied. And what the president did today, the president could have done long, long ago, if he had felt it was necessary.

Legal proceedings

Brad Berenson
Former Associate White House Counsel
To boil it down to its essentials, what the Supreme Court said is that any deviations that you have from the UCMJ, which governs court-martials, need to be justified and need to be explained. And there has to be a legislative process.

RAY SUAREZ: Well, the president today told the 9/11 survivors' families that these men will now be tried. Is there a legal architecture for these trials yet?

EUGENE FIDELL: Not yet. There was one that was in place, until the Supreme Court decided it was invalid, at the end of the current term last June. And that has to go back to the drawing boards.

Congress has been grappling with this over the summer. There were hearings conducted on the House and Senate side. There are hearings this week. There are going to be more hearings next week. The administration has today submitted a bill. It's, I think, 86 pages long, a lot of fine print that is going to have to be studied very, very carefully. I think we're a long way away from resolving the legal issues.

RAY SUAREZ: What, Brad Berenson, did the administration have to include in this bill for it to pass the Supreme Court muster imposed in the Hamdan decision?

BRAD BERENSON: Yes.

In the Hamdan decision, the Supreme Court struck down the previous military commissions, essentially for -- for deviating from the Uniform Code of Military Justice. To boil it down to its essentials, what the Supreme Court said is that any deviations that you have from the UCMJ, which governs court-martials, need to be justified and need to be explained. And there has to be a legislative process.

Congress has to be brought into the act. And they have to validate that these deviations are indeed necessary for fighting the war on terrorism effectively. So, the administration's bill uses the UCMJ as the foundation, and articulates a number of deviations from the UCMJ, fewer, frankly, than there were in the old system.

And I think the administration is now prepared to engage in a full legislative process, where...

Unfair trial

Eugene Fidell
Institue for Military Justice
The current military law, like federal law generally, has procedures in place for dealing with classified information. Those procedures have been used in case after case.

RAY SUAREZ: Now, some of the most important objections to the previous structure were that the suspects could not confront their accusers, and could not see the evidence against them.

These two big objections, will they be answered in the White House's version of this new tribunal?

BRAD BERENSON: No. The White House -- the White House version adheres to the position that the White House has had from the beginning, which is that, in certain limited circumstances, the prosecution must be able to introduce classified evidence against these detainees, without the detainee being present to hear that evidence.

Now, the bill is very clear that these are not secret trials, that the accused has a right to be present through all portions of the trial, except for very limited portions, which are cabined by some significant safeguards, in which classified evidence might need to be introduced that the intelligence community feels that the detainee cannot be exposed to.

So, the basic position the administration has taken on that, it stands by.

RAY SUAREZ: So, does that go far enough, Eugene Fidell?

EUGENE FIDELL: No, absolutely not.

I think these are really, really fundamental flaws. The notion that you might send somebody to the gallows or send somebody away for life after a -- quote -- "trial" in which at least some of the evidence, the accused has never been afforded an opportunity to see, or from which the accused has been -- for any part of the proceeding, been excluded from the courtroom, this is totally intolerable.

And -- and it's also unnecessary. This is the really weird part about the administration's position. The current military law, like federal law generally, has procedures in place for dealing with classified information. Those procedures have been used in case after case. They have not proven particularly problematic, and I don't see any reason why they couldn't be employed here.

Military justice is used to dealing with classified information. Now, the administration has proffered, in a number of respects, claimed that it is impractical to use the machinery set up for courts-martial in the Uniform Code of Military Justice, the military disciplinary statute that governs courts-martial.

However, all the administration bill does is assert it's impractical. It doesn't say why it's impractical. And I think one of the things that the justices of the Supreme Court expected was that a determination of practicability or impracticability requires more than a rote incantation of some formula. It requires some logical connection between facts and a conclusion. And the -- the administration's position does not have that conclusion, does not have that facts -- those facts.

RAY SUAREZ: But, if it is still lacking those things that...

EUGENE FIDELL: Yes.

RAY SUAREZ: ... Brad Berenson says won't be there, and you say need to be there...

EUGENE FIDELL: Yes.

RAY SUAREZ: ... will it meet the test put in place by the Supreme Court in Hamdan?

EUGENE FIDELL: I do not think it will.

And I think this is an invitation to protracted litigation, a continuation of the protracted litigation that the system has already been plagued by. I think this is going to really be quite unfair to the very people who were present at the president's statement today, the people who are -- who lost loved ones in the 9/11 attacks, because, far from providing closure, it's opening the door to further and, in my view, unnecessary protracted litigation.

What they should do is do it right, hew very, very closely to the Uniform Code of Military Justice. There's no reason it couldn't be done. And the legislation need not be more than a few pages long, instead of the telephone-book-thick document that the administration submitted today.

RAY SUAREZ: Well, you just heard Gene Fidell suggest that it may be a long time until some of the most notorious suspects on Earth are tried. What do you think?

BRAD BERENSON: Well, one of the unanticipated consequences of the Supreme Court's decision in Hamdan last June is that it undoubtedly delayed the trial of all the 9/11 conspirators.

A senior NSC official told me earlier today that he's confident that these folks would be under indictment in the old military commissions already, and facing trial in relatively short order, had the Supreme Court affirmed the previous system, rather than struck it down.

Now, we do need to await legislation. The Supreme Court has told us that. Hopefully, Congress will act expeditiously. If it does, I have little doubt that the administration will then move expeditiously to bring charges against these men, and we will have the -- the trial of the century very early in the century, wherein the 9/11 conspiracies are tried for the -- for the war crimes they committed on that day.

Detainee interrogation policy

Brad Berenson
Former Associate White House Counsel
This all, again, goes back to the Hamdan decision. It gets a little complicated, but the Supreme Court has said that Common Article 3 of the Geneva Conventions applies to this conflict.

RAY SUAREZ: Shifting gears a bit before we go, on the same day as this announcement was made, a new handbook for soldiers was released by the Department of Defense, and the president insisted that none of these detainees were tortured.

What's the significance of that announcement?

BRAD BERENSON: This all, again, goes back to the Hamdan decision. It gets a little complicated, but the Supreme Court has said that Common Article 3 of the Geneva Conventions applies to this conflict.

That article of the Geneva Conventions provides for certain standards of humane treatment, but does so with very, very vague language that would not give American interrogators, whether military or CIA, sufficient assurance that they could not be accused of violating Common Article 3, and thereby violating U.S. criminal law, as they conduct these interrogations.

And, so, the -- the administration is basically pleading with the Congress to articulate some clear legislative standards that will allow the people on the front lines of the war on terror, who are conducting these interrogations, to know that they are acting lawfully and don't face legal jeopardy for doing their duty.

RAY SUAREZ: Tactics were put out of bounds, and, at the same time, the president insisted the ones used were tough, safe, lawful, and necessary.

EUGENE FIDELL: Well, tough, obviously. Safe? I don't know. Lawful? I'm extremely skeptical. Necessary? I don't have the necessary information.

However, what I would say is this. The claim that the current prohibitions of Common Article 3, which is incorporated in the War Crimes Act, are too vague to be enforced is, I think, without foundation.

The War Crimes Statute was passed 10 years ago. It has not been asserted to be too vague to form the basis of a criminal prosecution. There are provisions in the Uniform Code of Military Justice that are at least as broad in their scope -- for example, the prohibition on oppression or maltreatment. Those are in Article 93 of the code.

The -- the notion that these are simply too vague to -- to permit a prosecution is very troublesome. What's more troublesome is that, by purporting to clarify a matter, the effect will be to immunize past conduct. And that is extremely disturbing. If people violated Common Article 3 in the past, then I think the full process of the law should be brought into play.

RAY SUAREZ: Eugene Fidell, Brad Berenson, thank you both.

EUGENE FIDELL: Thank you.

BRAD BERENSON: Thank you.