Detainee issue splits Congress

Justices' anti-tribunal ruling leaves little time for big challenge


WASHINGTON -- As Congress began hearings this week on a new system for bringing terror detainees to trial, there was only one consensus: that the worst outcome would be a system that is again rejected by the Supreme Court.

Lawmakers split on whether to scrap the president's system of military tribunals - possibly in favor of a system based loosely on the military courts - or to write the tribunals into law with a few changes.

Douglas W. Kmiec, a Pepperdine University law professor who was a top Justice Department lawyer during Ronald Reagan's administration, said Congress' efforts also might be found lacking by the justices.

"For a good long time, the president has been the only actor on the stage, and therefore - like in the old-fashioned country melodramas - the justices have been able to aim all their boos and hisses at the president as the primary villain. Well, now Congress, too, will be on the stage," he said.

"There's no reason to believe that the skeptical judicial audience will be any kinder to Congress than it was to the president."

As Congress wrangles over creating a new system, the split on Capitol Hill mirrors an apparent divide on the issue within the Bush administration. Reaching agreement is expected to be a knotty task.

Besides resolving its own differences, the challenge for Congress is how to please a White House that still backs its original system of military commissions and a Supreme Court that sent a strong message two weeks ago that detainees must be afforded some basic rights.

Lawmakers will soon find themselves mired in discussions about the nuts and bolts of criminal trials, including when to allow a suspect to have a lawyer and what to do about classified evidence.

The tribunals set up by a presidential order in 2001 provided for few of the basic rights typically afforded to a criminal defendant, including the right to be present during court proceedings.

The task for Congress is determining how to create a process that is fairer while acknowledging that standard criminal rules might be too lenient for terrorism suspects.

"The issue is, what is coercion? What is exculpatory evidence?" said Sen. Jeff Sessions, an Alabama Republican.

"What's important here is to make sure that we can try these individuals fairly but, at the same time, not disrupt the ongoing war on terror," White House spokesman Kenneth Lisaius said. "Terrorists certainly don't deserve the same standards to which our troops are entitled."

The Supreme Court ruled that, at the least, Bush had overstepped his constitutional bounds in crafting the military commissions without seeking approval from Congress, essentially throwing the issue into lawmakers' laps.

Much of the debate has focused on whether to base the new system on the original tribunals or on the military justice code.

Republican Sen. Lindsey Graham of South Carolina said an important step toward resolving that issue is toning down the bluster on Capitol Hill.

"There's so much rhetoric out there that is just so off base and so politically motivated," he said.

Graham, who has served as a judge advocate general and is a reserve judge for the Air Force Court of Criminal Appeals, said his colleagues should stop any efforts to exploit the process for political gain. American soldiers need the new rules to be set up quickly, he said.

"This is not about November '06. This is about years to come," Graham said. "If we politicize this, we'll let our military down."

Sen. John W. Warner of Virginia, a Republican who is chairman of the Senate Armed Services Committee, said he would continue to hold hearings in July and August to gather ideas and opinions about the best approach for trying detainees.

The earliest that a firm legislative proposal is expected to be ready is shortly after Labor Day, when Congress returns from its monthlong August recess.

That means the time for passing legislation is short. Senate Majority Leader Bill Frist of Tennessee said this week that he wants to send senators back home to campaign by the end of September, leaving few legislative days in which to work out a compromise.

Before that, lawmakers have to settle on where to start.

Justice Department and Pentagon officials have made a forceful public case for ratifying the military commissions set up in 2001, but lawmakers said others at the White House have privately expressed a willingness to use the U.S. military's rules for trying its own soldiers as a foundation for the trials of detainees.

In Congress, the House seems more inclined to codify the president's tribunal system, and senators are emphatic that giving the administration a blank check is unacceptable.

"We're not going to authorize the president to do what he wants," said Sen. Carl Levin of Michigan, the top Democrat on the Armed Services Committee. "We're not simply going to ratify what he's done."

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