Congress Consensus to Uphold Geneva Conventions

The June 29, Supreme Court decision which found that President George Bush's plan to try detainees held at the U.S. Naval base at Guantanamo Bay, Cuba, by military commissions violated both the U.S. Uniform Code of Military Justice and the Geneva Conventions, has sparked congressional debate on the legal rights these terrorist suspects should be accorded.

President Bush had initially wanted to subject hundreds of detainees held at Guantanamo to proceedings that would allow the use of evidence obtained from "coercive interrogation" -- a euphemism for torture -- and limit detainees' right to hear evidence introduced against them. White House lawyers and some Republicans in Congress are advocating that legislation be passed to legalize the military commissions struck down by the Supreme Court. But a bipartisan group of legislators and military lawyers support trials for the detainees based on the Uniform Code of Military Justice that guides court-martials of U.S. soldiers.

In testimony before a Senate Armed Services Committee hearing July 13, top lawyers from the Army, Navy, Air Force and Marines expressed public disagreement with the Bush administration on how terrorist suspects held at Guantanamo and elsewhere should be treated. Between The Lines' Scott Harris spoke with Wells Dixon, an attorney with the Center for Constitutional Rights that represents Guantanamo Bay detainees. He assesses the congressional debate over how detainees held at Guantanamo, will be tried.

WELLS DIXON: The Supreme Court decided in the recent Hamdan v. Rumsfeld decision , by a 5 to 3 vote, that the military commissions that President Bush had established to try Guantanamo Bay detainees who were accused of war related crimes, was unlawful. The court did so in two respects. First the court held that the commissions violated the Uniform Code of Military Justice , because the commissions as created by President Bush did a couple of things such as exclude detainees from portions of their trial; it allowed them to be convicted based on evidence that the detainee was not allowed to see or hear.

And the second thing that the court did was that it held that the commissions violated Common Article 3 of the Geneva Conventions. These are the provisions of the Geneva Conventions that apply to all combatants, regardless of whether they're prisoners of war or not. And what these common provisions do is essentially establish a baseline, that is an international minimum of a standard of care, if you will , for decency, morality and ethics for those who are captured during times of war.

BETWEEN THE LINES: What is the next step here? It seems that the Republican majority in Congress is looking to do a quick fix to satisfy the U.S. Supreme Court in that the Court stated, I believe, that the Bush administration's method of trial for these detainees was not approved by Congress. So it seems that they're just trying to dot the i's and cross the t's without any substantial change to the White House method.

WELLS DIXON: Right, well the process will be much more complicated than that, I can assure you. In fact, legislation is not really necessary in the wake of the Hamdan decision.

We have in the United States already an established system that's capable of handling these commissions for detainees , and that's the courts martial system under the Uniform Code of Military Justice. It's fully capable of handling these sorts of trials.

I'd point out though that even under the old system -- that is, the military commissions struck down by the Supreme Court -- the Bush administration had only charged approximately 10 people out of more than 700 that had passed through Guantanamo Bay. So, I don't think that additional legislation and additional litigation over this legislation would really accomplish anything in terms of Guantamo Bay and solving the problems that we have here.

It's not really clear what Congress is trying to do. It seems to me that they're having a lot of debates not only between the Republican majority and the Democratic minority, but also within the parties about what if anything to do in the wake of Hamdan.

You may recall that just prior to the Hamdan decision coming down, Presiden t Bush stated publicly that he was waiting for the Supreme Court to decide this case and that once the case was decided, he wanted to close Guantanamo Bay. Well, the Supreme Court has now spoken and President Bush certainly has the power to close it down. That seems to me to be the solution , not additional legislation and additional litigation.

BETWEEN THE LINES: There were some hearings on Capitol Hill last week, where some active duty and retired military judges and attorneys came before the committee there and told Congress that they approved of what the Supreme Court was trying to accomplish in terms of respecting the Geneva Conventions when it comes to how to judicially treat these detainees held at Guantanamo. Tell us a little about that if, you will.

WELLS DIXON: The United States has since the 1950s, followed the Geneva Conventions in all respects. It wasn't until this latest conflict that any American president had determined that the Geneva Conventions did not apply to our enemies in wartime. Now, I think it's particularly troubling for members of the American forces because it establishes a precedent abroad that says, essentially that if the United States is not required to comply with the Geneva Conventions, then neither are we. Then that obviously puts U.S. service personnel at risk themselves.

BETWEEN THE LINES: The Bush administration seems to be appealing to many people's basic instincts to say, "We were attacked on 9/11 and we have to use any and every means necessary to protect this country, up to and including violating international law." Politically speaking, I think they're trying to bank on people's blind faith that the Bush administration's methods will somehow protect the United States better than adhering to international law.

WELLS DIXON: My reaction is the same reaction that others have had lately, which is to say that what the Bush administration is doing here really has more to do with the expansion of presidential power than it does with trying detainees. The Supreme Court held in Hamdan knows that the president cannot establish military commissions and act beyond what Congress has authorized him to do in these cases. So there are limitations clearly on presidential power.

Contact the Constitutional Rights at (212) 614-6464 or visit their website at www.ccr-ny.org

Scott Harris is executive producer of Between The Lines, which can be heard on more than 40 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending July 28, 2006. This Between The Lines Q&A was compiled by Scott Harris and Anna Manzo.

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