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Q & A: Congress Debates Detainee Trials

Congress begins debate this week on how to try detainees held at the U.S. prison camp at Guantanamo Bay, Cuba. The hearings come in the wake of a Supreme Court ruling that struck down the secret military tribunals set up by the Bush administration.

The high court found that the president lacked the legislative authority to set up the commissions, which severely limited the rights of the accused. The justices said the commissions violated the U.S. Constitution, as well as domestic and international law.

The issue now before legislators is to what extent terrorism suspects should be offered fair-trial protections. Below, a look at the debate:

Q: Can Congress simply pass a law giving the president the authority to establish commissions in any manner he wishes, essentially overruling the Supreme Court?

Congress could certainly pass such a law, but it's not clear it would pass muster at the Supreme Court. The resulting trials could be struck down all over again.

The Supreme Court has said that any trials must meet some basic legal standards. For example, the Bush commissions allowed evidence obtained by coercion. The Supreme Court said that violated the Geneva Conventions.

To cite another example, the Bush commissions had no independent judges running the trials and no independent review. Instead, the commissions gave the president final review of all outcomes for fairness. That violated the Uniform Code of Military Justice, according to the Supreme Court. The justices also implied that, even if such commissions were to be authorized by Congress, they still might not be tolerated. So, it would be difficult for Congress simply to provide retroactive authorization for the commissions as originally put forth by the president.

Q: There's also been a lot of discussion about the global reputation of the United States and how it has suffered in light of these trials. Will that figure into the hearings?

Some in Congress see the hearings as an opportunity to recapture some of the reputation that the U.S. has lost over Guantanamo. Others want to pass a law making it clear that the Geneva Conventions' protections do not apply to these prisoners.

There's a certain misunderstanding about what the Supreme Court said on this point. The court hinged its opinion on what's called Common Article 3 of the Geneva Conventions, which applies to everyone in a conflict, civilians and military alike. That article says that prisoners -- whether or not they are prisoners-of-war -- have to be treated in a humane way. If Congress were to bail on that provision, it would amount to repealing the McCain anti-torture amendment that was passed last year.

Common Article 3 also requires that if prisoners are tried, they have to be tried by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The Supreme Court found that the Bush commissions didn't meet that basic standard. The question in this debate is whether the United States really wants to abandon that standard -- and if it does, how that will look to the rest of the world.

Q: Who are the major congressional players in these hearings?

Three different congressional panels will be holding hearings on crafting trials for Guantanamo detainees: The House Armed Services Committee, the Senate Judiciary Committee, and the Senate Armed Services Committee.

The real action is likely to come from that last panel, which is chaired by Sen. John Warner. Last winter, Warner helped push through legislation that banned the use of torture on detainees. Other members of the Armed Services Committee include Sen. John McCain, who introduced the torture ban, and Sen. Lindsey Graham, a former military lawyer who has called for tribunal procedures that are more in line with existing standards for military tribunals.

For the Democrats, Sen. Carl Levin of Michigan is likely to emerge as a key player.

Q: Reports suggest Republicans are not unified on this issue. Where is the divide?

There are some Republicans who want to just pass a law codifying the system that was struck down by the Supreme Court. Other Republicans want to tweak the existing court-martial system.

Ironically, five years ago, the Democrats and some Republicans -- like Sen. Graham and Judiciary Committee Chairman Arlen Specter -- tried to enlist the Bush administration in writing a military tribunal law. But the administration rebuffed all those efforts, contending that it had the unilateral power to establish these commissions. Now, five years later, obviously the administration has a lot less bargaining power.

Q: Where do the Democrats stand on this issue?

Some Republicans have made it clear that they want to use the detainee trials as an election issue. Frankly, Democrats are worried that they'll be painted as weak on terrorism. That's why those in the middle -- McCain, Warner, Graham, Specter -- are going to play such a central role in the debate.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.