U.S. officials appearing before Congress have argued that U.S. policies regarding terrorist suspects held in detention must remain flexible, despite Bush administration recognition of a Supreme Court ruling regarding military tribunals. Lawmakers held a second day of hearings as they consider how to respond to the court ruling.
Members of Congress, military lawyers and experts are still examining the legal implications of the June 29 court decision.
The Supreme Court ruled that a key portion of the Geneva Conventions, Common Article 3 regarding humane treatment, applies to the war against al-Qaida.
Justices effectively blocked military tribunals established by the Bush administration for trials of terror suspects held at the U.S. naval facility at Guantanamo Bay, Cuba noting Congress had not approved them.
While the Defense Department recognized the decision, Pentagon lawyers argue Congress should not weaken the military's flexibility in dealing with enemy combatants the Bush administration previously maintained were not covered by Geneva protections.
Congressman Duncan Hunter asserts that any legislation should not give detainees additional rights, including those regarding discovery of evidence under the military justice system.
"Court martials and federal criminal trials have special rules to protect classified information for our soldiers and civilians, but do we want to give battle intelligence to terrorists? In time of war it may not be practical to apply the same rules of evidence that we do in civilian trials or court martials, for our troops," he said.
Hunter says that whatever the process, detainees should be treated humanely in a way the world acknowledges as fair, but adds we should not be naïve.
Pentagon Principal Deputy General Counsel Daniel Dell'Orto cautions against broadening rights for terrorist suspects, including access to what he says is a military justice system more rigorous than civilian courts.
"Full application of court martial rules would force the government either to drop prosecutions or to disclose intelligence information to our enemies in such a way as to compromise ongoing or future military operations, the identity of intelligence sources, and the lives of many. Military necessity demands a better way," he said.
Acting Assistant Attorney General in the Justice Department's Office of Legal Counsel, Steve Bradbury, urges Congress to carefully consider how to proceed regarding al-Qaida terrorist suspects.
"It is not appropriate as a matter of national policy, not practical as a matter of military reality, not required by the Constitution, and not feasible in protecting sensitive intelligence sources and methods, to require that military commission's follow all of the procedures of court martial," he said.
John Hutson, a former judge advocate general of the U.S. Navy, warns against any attempt to skirt what he calls judicial guarantees recognized as indispensable by all civilized peoples.
"We should not make this too hard, or too complicated or get too cute with it. We know what those guarantees are. We should enthusiastically embrace them, we should celebrate them, we should shout them from the rooftops," he said.
Hutson suggests the Uniform Code of Military Justice be the model for Congress as it determines legislative responses to the Supreme Court decision.
Congressman Ike Skelton says Congress needs to take its time.
"Under this recent Supreme Court decision it is possible to legislate a system that will keep terrorists off the battlefield, and meet court's standards," he said.
Lawmakers in the House and Senate are considering a number of legislative options, adding they are open to proposals from the White House.
A third hearing on detainee treatment takes place Thursday in the Senate Armed Services Committee.