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By Marion Edwyn Harrison, Esq.
September 28, 2006
Arizona Senator Jon Kyl hardly is as well known as his colleague, Senator John S. McCain, III, or as dozens of other Senators, nor might he be associated in the public mind with legislation concerning the interrogation and trial of terrorist criminals and suspected criminals. In fact, Senator Kyl is a legislator who spends his time attending to Senatorial duties. Among those duties, he chairs the Republican Policy Committee (“RPC”), which often produces worthwhile and objective or reasonably objective research. Most recently, RPC issued an 18-page study, “Crafting Legislation to Prosecute Terrorist War Criminals and Preserve Valuable Interrogations.”
In the waning days of the 2d Session of the 109th Congress, expected to adjourn tomorrow, with the possibility of a “lame-duck” short session following the November 7, 2006 Congressional elections, RPC summarizes the complicated legislative situation vis-a-vis procedures for prosecution of suspected terrorists. The full paper is available on the RPC Website, http://rpc.senate.gov, and more particularly at Sep1906RespondHamdanBB.pdf.
The RPC study discusses the two major, and at points materially diverging, bills before Congress, S. 3861 and S. 3901. Its seven subjects are: Introduction; Background to the Detention of Unlawful Enemy Combatants; The Supreme Court Decisions Leading to the Present Legislation; How the Hamdan Decision Made Congressional Action Essential; The First Challenge: Ensuring Prosecutions of Terrorist War Criminals; The Second Challenge: Common Article 3 [of the Geneva Convention] and Interrogations; Final Point - Agreement on Clarifying the Detainee Treatment Act.
Perhaps as nothing more than a study in personalities and personal experience, it may be interesting that one bill reflects the thinking and recommendations of the Bush Administration, the other of its principal sponsors (and likely others) - Virginia Senator John W. Warner, a Marine and Navy veteran and former Secretary of the Navy; Arizona Senator McCain, a retired Navy rear admiral and long-time prisoner of war; and North Carolina Senator Lindsay Graham, a former Army judge advocate or JAG officer (as this writer once was).
The RPC study does not delve into the pending Senatorial parliamentary situation, which is intricately involved, or the tense and precariously short period of time Congress has to finalize some kind of meaningful legislation - a task GOP Majority Leader William H. (Bill) Frist, M.D., now is leading. Mistakes have augmented the difficulty in achieving a workable means by which innocent American lives lawfully can be defended against terrorists. One can contend that the Bush Administration, and more particularly those in the Departments of Defense and Justice upon whose advice President George W. Bush relied (as we now know, erroneously), should have anticipated the probability of judicial invalidation of the Bush approach and from the first instance sought clarifying legislation. However, in real life, more than in philosophy or poetry, past always is prologue (however trite the expression may be). The trying question is what Congress now could do. The RPC Executive Summary highlights the principal alternatives:
“The Supreme Court decision in Hamdan v. Rumsfeld invalidated the military commissions that were being used to prosecute war criminals at Guantanamo Bay, and also put the nation’s terrorist interrogation program in jeopardy by holding that Common Article 3 of the Geneva Convention applies to treatment of unlawful enemy combatants.
Congress has now undertaken the task of crafting legislation to address both issues: to create military commissions to try war criminals, and to preserve the terrorist interrogation program.
Two Senate bills have been offered to address these challenges, an Administration proposal, S. 3861, and a Senate Armed Services Committee (SASC) proposal, S. 3901.
Both bills create military commissions so that terrorist war criminals can be brought to justice and punished, whereas today they are simply held until the end of the conflict.
The Administration proposal would allow the use of classified evidence after showing it to the detainees’ lawyers, but not the detainees themselves. The SASC bill would not allow evidence to be used that is not shown directly to the detainee.
The two bills also differ on the use of hearsay evidence and evidence gained by coercive tactics, with the SASC bill being more restrictive on their admission into evidence.
The terrorist interrogation program has been highly effective in preventing terrorist plots and saving innocent lives across the globe; the question is how best to preserve it.
The Administration proposes to clearly define the meaning of arguably vague terms in Common Article 3—prohibitions against ‘outrages upon human dignity’ and ‘humiliating and degrading treatment’—by explicit reference to the Detainee Treatment Act of 2005. That law requires interrogations to comply with existing U.S. constitutional standards. The President has argued that U.S. personnel require clear guidance on the meaning of Common Article 3, or they will not be able to do their jobs.
The SASC bill would protect U.S. personnel from prosecution for vague interpretations of Common Article 3, but would not attempt to define Common Article 3 itself. SASC bill supporters argue that providing explicit definition to Common Article 3 could backfire on the United State and hurt U.S. personnel in future conflicts.”
The legislative challenge indeed is difficult.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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