Guantanamo Detainees Rights Are Reexamined

KWAME HOLMAN: Over the past two weeks, Defense and Justice Department lawyers dispatched by the White House to testify before Congress made it clear the president objected to using the courts martial approach, part of the 56-year-old Uniform Code of Military Justice. They argued it would grant suspected terrorists legal protections that could hinder counter-terror operations.

Justice Department lawyer Stephen Bradbury.

STEPHEN BRADBURY, Acting Assistant Attorney General: If the proposition is, we have to try them, and convict them, and get them in prison as a convicted war criminal first before we interrogate them to get viable intelligence, well, then we put America at risk and our soldiers at risk because we're not getting intelligence that we may need, and we may need it right now.

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

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

There are circumstances under which they want to be able to exclude the defendant from the proceedings. There are circumstances under which they want to prevent a defendant in a military commission from defending himself.

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

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

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

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

COMMITTEE WITNESS: Yes, sir.

COMMITTEE WITNESS: Yes, sir, I think doing that would not fulfill 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 the existing rules for courts martial, governed by the Uniform Code of Military Justice, should be the guide for a new tribunal system. Air Force Judge Advocate 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 to none in the entire world.

KWAME HOLMAN: The split between uniformed legal officers and civilian policymakers has existed since the war on terror began, according to Eugene Fidell.

EUGENE FIDELL: Important decisions were being made by civilians without the active involvement of the uniformed legal community. I think 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 lawyers out of the original process led to regrettable policy decisions. He questioned General Rives.

SEN. LINDSEY GRAHAM (R), South Carolina: As a matter of fact, you and other judge advocates strenuously objected it to the interrogation techniques being proposed in December 2002 because you thought that it would violate the UCMJ, 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 general had warned the techniques constitutes torture under both domestic and international law.

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

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

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

Pentagon General Counsel William Haines helped draft it.

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

KWAME HOLMAN: Democrat Dick Durbin said the policy had migrated 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 forced standing, included nudity, the things which you approved in the memo you sent to the secretary of defense.

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

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

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

EUGENE FIDELL: People may turn out to get prosecuted for things that no one thought could lead to a prosecution at the time. We haven't had 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: I think it will fall upon this body ultimately to help us resolve those issues.

KWAME HOLMAN: Suggestions from the military legal establishment, a pending proposal from President Bush, and conflicting views among lawmakers all will weigh on congressional leaders as they prepare legislation for consideration in early September.