In a significant rebuff to President Bush and his security-driven strategy for Republican victory in November, the Senate Armed Services Committee on Thursday rejected the President's military detainee bill and passed a radically different alternative. At stake in this standoff between the President and the Senate are legal and moral issues central to the Constitution and the character of the American people: the right to a fair trial, the use of torture, the accountability of high government officials for war crimes. It also tests the powers of Congress and the Supreme Court to rein in an errant executive.
In the run-up to the midterm elections, the Bush Administration seeks to position Republicans as tough in pursuing the "war on terror," and to present Democrats as soft. By revealing recently that the government had been holding captives in secret jails and aims to try them at Guantánamo Bay, Bush and his advisers signaled that they are clearly hoping for an upswell of public support for Republicans who are "tough on terror."
But it was Republicans on the Senate Armed Services Committee, not Democrats, who led the battle this week against the President's proposal: John Warner, Lindsey Graham and John McCain were joined in the 15-to-9 committee vote by Susan Collins of Maine.
The President's proposal seeks to roll back two important decisions rendered by the Supreme Court on the legal rights and treatment of terror suspects: Hamdan v. Rumsfeld  and Rasul v. Bush . It would establish tribunals at Guantánamo that would deny the most basic legal protections required by the Geneva Conventions, allow the use of hearsay evidence and evidence obtained by coercion, and allow defendants to be convicted on the basis of evidence they had never seen.
It also guts much of the War Crimes Act , which makes it a federal crime for an American to commit "grave violations" of the Geneva Conventions. While the Administration claims it is concerned about protecting CIA interrogators, its bill would also protect mercenaries and top government officials from prosecution. And it would apply retroactively to September 11, 2001.
The Senate Armed Services Committee bill, in contrast, aims to establish Guantánamo tribunals in accordance with the standards set out in the Supreme Court's Hamdan  decision. And it would leave much more of the War Crimes Act intact. Nonetheless, the Warner bill has some significant flaws.
According to an analysis by Georgetown Law School professor and former Clinton official Marty Lederman, posted  on his Balkinization blog, the Warner bill would reverse the Supreme Court's Rasul v. Bush  decision by eliminating the power of the federal courts to hear the habeas corpus claims of any noncitizen detained overseas or any individual who has been determined by the United States to have been properly detained as an enemy combatant "other than in very circumscribed appeals from decisions of the Civilian Status Review Commissions or military tribunals."
This provision would foreclose hundreds of Guantánamo detainee claims currently pending before the courts. J. Wells Dixon of the Center for Constitutional Rights  told The Nation: "For more than 200 years our nation has adhered to the fundamental principle that our government is one of laws, not men. The Administration and Warner bills threaten that tradition by stripping the federal courts of jurisdiction to hear pending habeas cases brought by Guantánamo detainees. If enacted, these bills would authorize the life-long detention of more than 450 men who have been imprisoned in Guantánamo for nearly five years without ever having been charged with an offense or receiving a fair hearing. This is unconscionable. Every person detained by our nation must receive a fair hearing--one that does not rely on secret evidence or evidence obtained by torture or coercion--because fairness and due process are what America stands for. We would demand nothing less for members of our military if they were captured abroad by our enemies. Congress should reject any provision that abandons habeas corpus."
The Warner bill would also amend the War Crimes Act to provide effective legal cover for many of the CIA's "alternative" techniques--including use of hypothermia, sleep deprivation and threats of violence against detainees and their families.
In short, while some kind of trial for some alleged enemy combatants may well be appropriate, the Warner/McCain/Graham bill should not be seen as an acceptable alternative to the Bush bill. Basic human rights should not be abridged on the back of an envelope without hearings or debate.
Passage of the President's bill seems assured in the House of Representatives. Despite the objection of some Democrats, the House Armed Services Committee majority--including twenty of its twenty-eight Democrats--voted September 13 to send a bill incorporating the President's plans to the full House.
The most visible House dissent has come from a group of twenty-four Democrats led by Ed Markey of Massachusetts, who wrote, "We are opposed to any changes in the War Crimes Act that would have the effect of undermining the proscriptions against torture or other cruel or degrading treatment contained in the Geneva Conventions and the Convention Against Torture."
Senate majority leader Bill Frist has threatened to bring the Administration's bill, instead of the Warner measure, to the Senate floor, inviting a showdown. If and when that happens, Warner may try to amend it with the provisions of the committee's bill. The Administration may hold its fire until the House-Senate conference committee meets to negotiate a final text. But at present Warner and his allies seem to have the votes to block a conference committee bill that incorporates the President's proposal.
To complicate matters further, there may be an effort to roll the detainee bill together with another measure on warrantless wiretapping by the National Security Agency, of which House and Senate committees have passed radically differing versions. Since Congress is scheduled to adjourn in two weeks, deadlock seems at least as likely as new legislation. The good news is that with a deadlock, the Rasul  and Hamdan  decisions--as well as the War Crimes Act--remain intact.
Principle has played some role in the resistance to the Bush Administration. McCain has said he won't back down even if it ruins his chance of becoming President in 2008. Former Secretary of State Colin Powell, Bush's own military law chiefs and other military officials have made ringing defenses of the Geneva Conventions and have warned that tampering with them would threaten America's global reputation and the well-being of its military personnel captured in the future.
But the political context is also critical. Five years after 9/11, the Republican strategy has been to take attention off an unpopular war by railing against terrorism. But increasing concerns are surfacing within the GOP over the Administration's security proposals, the President's approval rate has plummeted and support for the Iraq War, which has now lasted longer than World War II, is waning.
House Republicans have responded to the President's order to "jump" by saying, "How high?" But as Jonathan Weisman wrote  in the September 14 Washington Post, "by backing the president's legislative demands, the [Republican] leadership risks being labeled by Democrats as a rubber stamp for an unpopular president."
Republican support for a law that countenances torture, prisoner abuse and repudiation of the Constitution, the Supreme Court and the Geneva Conventions could provide an important issue for Democratic Congressional candidates. But Democratic House candidates can't criticize Republicans if they are supporting Bush's legislation themselves--as a majority of Democrats on the House Armed Services Committee have done. A strong Democratic position against the President's bill now could be a real boost for Democratic House candidates challenging House Republicans.
The fight over military tribunals and torture is far more than a partisan issue. In Connecticut, for example, religious activists affiliated with the National Religious Campaign Against Torture  have initiated a campaign that seeks to hold all Senate and House candidates in the state accountable for their positions on torture and the abuse of executive power. They have begun meeting with Congressional candidates and injecting the torture issue into campaign events.
Connecticut is particularly important because it features three tight House races and the bellwether Ned Lamont-Joe Lieberman contest. The religious activists take some credit for having encouraged Lamont to adopt a much more outspoken position on torture. Lieberman is particularly vulnerable on the issue because he was one of only five Democratic senators who voted for a Republican bill to strip Guantánamo captives of the 800-year-old right to habeas corpus, and because he was one of only six Democrats who voted to confirm Alberto Gonzales as Attorney General--after endorsing the conclusions of Gonzales's notorious "torture memo." He's claiming to be a moral leader who is not in bed with President Bush. The religious activists are now organizing a media event with clerics from varied denominations to ask Connecticut's two senators, Lieberman and Dodd, to come out with a forthright stand against the President's bill.