The Senate Armed Services Committee held a second day of contentious hearings on the procedures for handling suspected terrorists held at the U.S. military detention facility in Guantanamo Bay, Cuba. Congress is examining whether it should pass a law that would codify how captured enemy combatants are treated.
U.S. Senators say they are concerned that, in the three years since the U.S. military began housing suspected terrorists at Guantanamo Bay, Cuba, not one has been brought before a military tribunal to face charges.
Senator Lindsey Graham, a Republican from South Carolina, said the tribunal system is stuck in litigation that has left the 520 detainees in limbo.
"The goal of this hearing and my involvement is to come up with a comprehensive solution that allows Guantanamo Bay to be used effectively in the war on terror, a place where we can try people sooner rather than later, that we can continue to get good intelligence, using standardized techniques that will not create black eyes for this country, in terms of the hearts and minds part of the war, and have a detention policy that will define an enemy combatant in a way that the federal courts will sign off on," said Mr. Graham.
Although the United States is a signatory to the 1949 Geneva Conventions, which set international standards for the treatment of prisoners of war, President Bush caused considerable controversy when he decided that suspected terrorists captured in the global war on terror would be held as so-called enemy combatants who are not subject to the Geneva Conventions.
Senator Graham, a former Air Force lawyer, said he believes Congress should act to pass legislation that would codify the definition of an enemy combatant and how he or she should be prosecuted, in order to close the legal loopholes that have kept these cases from proceeding to trial.
But Daniel Dell'Orto, principal deputy general counsel at the Defense Department, testified before the committee that he did not think congressional action was necessary.
"The framework of laws under which we currently operate give us the ability to prosecute the war under the rule of law, as it currently stands, and that [proposed] legislation is not necessary," he said. "I believe, the courts, ultimately, will see their ways through these issues, and I believe they have already indicated that."
But several Senators said that, in the absence of such federal laws, the White House, Defense Department and Justice Department have been basing interrogation techniques and detainee procedures on a series of evolving standards.
Senator Graham cited a 2002 working group set up to examine the legal definition of torture. At the hearing on Thursday, several military judge advocates involved in the deliberations testified that they had expressed concern about the new definition of torture, but Justice Department officials overruled them.
"It alarmed you [one], not because you're soft on terrorism, but because you understand that, for 60 years, there's been a certain way of doing business and that as military lawyers you don't want to get your troops in trouble by having a confusing legal situation," said Mr. Graham.
Another Republican Senator, John McCain of Arizona, said he was concerned that the lack of regularized treatment for enemy combatants put U.S. troops at risk. Mr. McCain, who spent five years in a North Vietnamese prison camp, sharply criticized Daniel Dell'Orto, the Pentagon lawyer.
"What happens the next time we are in a conflict, and an American, not in uniform, on some kind of clandestine operation, such as our people are on in Afghanistan, in civilian clothes, is captured," asked Senator McCain. "What kind of protections do you think that American serviceman is going to get?"
"It would depend upon the circumstances," replied Mr. Dell'Orto.
"Well, I think we know, Mr. Dell'Orto," Sen. McCain said. "I think we know, and that's what I worry about. I worry about what happens to the next American that is captured in a conflict."
Mr. Dell'Orto defended the military's treatment of enemy combatants, who he said are treated humanely. He said they are fed, sheltered, clothed and provided with medical care and religious accommodation. He added that, when cases of abuse are uncovered, the offending U.S. troops have been punished and that 197 soldiers have been court-martialed.
Senator Ted Kennedy pointed out that the high-ranking officer in charge of operations at both Guantanamo and Abu Ghraib has not been punished for his role in the abuse scandal.