US Congress Debates Detainee Policy, Military Commissions

09 July 2009

Committees of the U.S. Senate and House of Representatives heard testimony this week about the nation's detainee policy and proposals to revise the controversial military commissions system. Legal experts, current and former military officials, and representatives of civil liberties organizations discussed whether trials should take place in civilian courts, and lawmakers questioned Obama administration officials about detainees still held at the Guantanamo Bay, Cuba detention facility.

With about six months before President Barack Obama's stated January 22 deadline for closing the Guantanamo facility, debate is heating up over America's detainee policy, and the controversial system of trying detainees before military commissions.

Critics say the commission system, operating under the Military Commissions Act Congress passed in 2006 during the Bush administration, is fatally flawed and discredited internationally, and should not be used for future trials.

That view was voiced on Wednesday by Lieutenant Colonel Darrel Vandeveld, a former prosecutor at Guantanamo, Bay who told a House Judiciary subcommittee that it would be a mistake to revive an "irretrievably flawed" system.

"When I got there, I experienced a profound change of heart and mind when I realized through firsthand observation and through my own actions that what I was seeing at Guantanamo was not at all consistent with our core values of justice and due process of law," he said.

About 229 detainees remain at Guantanamo. The Justice Department and the administration are considering which detainees to prosecute in military or federal civilian courts and which might be subject to continued, indefinite detention.

Senator Carl Levin, 07 Dec 2007
Senator Carl Levin (file photo)
For the most part, the Obama administration supports a bipartisan effort, led by Democratic Senator Carl Levin, to revise military commissions law aimed at making trials fairer. President Obama set that as a goal in May, when he announced he would seek to reform the military tribunal system.

At a Senate Armed Services Committee hearing, Levin referred to previous unsuccessful efforts at getting the law right. "The double failure that I have just described to establish a system that provides basic guarantees of fairness identified by our Supreme Court has placed a cloud over military commissions and has led some to conclude that the use of military commissions can never be fair, credible or consistent with our basic principles of justice," he said.

Senator Levin said that proposed changes would eliminate the burden on a detainee to prove that hearsay evidence is not reliable, do away with a "double standard" in which statements given under cruel or degrading treatment were admissible if obtained prior to December 30, 2005, and remove procedural obstacles for defense teams.

Defense Department General Counsel Jey Johnson said U.S. national security would be served by reforming the system. "Military commissions can and should contribute to our national security by becoming a viable forum for trying those who violate the laws of war. By working to improve military commissions, to make the process more fair and credible, we enhance our national security by providing the government with effective alternatives for bringing to justice those international terrorists who violate the laws of war," he said.

Witnesses differed about whether future trials should occur in military or civilian courts.

Rear Admiral John Hutson is a former Judge Advocate General of the U.S. Navy. "I think we're missing an opportunity to display the greatest judicial system on the face of the earth, to shout it from the rooftops. Rather than doing that, we are sort of hiding it under a bushel [basket] [i.e., concealing it] and bringing out the uniformed [military] service persons. I admire and am proud of the job that they do. But it simply is not the responsibility of the Department of Defense or the U.S. Armed Forces," he said.

Retired Major General John Altenburg, Jr., a former Appointing Authority for Military Commissions, says the military system can be effective. "Military commissions are an appropriate, long-validated constitutional mechanism for law of war violations. Military commissions have always adapted to both the operational needs of the particular conflict and to the then-existing state of criminal law," he said.

Current Judge Advocate General of the Navy, Vice Admiral Bruce MacDonald, says Congress and the Obama administration must ensure that a new military commission system is seen as credible. "I think it is absolutely vital that when we leave here at the end of the day, it's not because that we believe that what we have created is a second class legal system. We need to look at this, that this can stand alone in the world and we are willing to be judged by what we are putting together today. You ought to feel very comfortable sending anybody to these commission's processes," he said.

Senator Joseph Lieberman, an Independent who often caucuses with the Democrats, opposed giving suspected terrorist detainees access to the civilian U.S. justice system.

"The effect of it is to give these war criminals -- people we believe are war criminals [since] that is why we captured them -- the greater legal protections of the federal courts because they have chosen to do something that has pretty much not been done before in our history, which is to attack Americans, to kill people here in America as they did on September 11, 2001 -- civilians [and] innocents, it doesn't matter -- and to do it outside of uniform," he said.

Republican Senator John McCain said that while the proposed revisions he helped draft will not resolve all issues, they represent progress. "I believe we have made substantial progress that will strengthen the military commissions systems during appellate review, provide a careful balance between protection of national security and American values, and allow the trials to move forward with greater efficiency toward a just and fair result," he said.

But Deborah Pearlstein, a scholar at Princeton University's Woodrow Wilson School of Public and International Affairs said that while some changes proposed by lawmakers are positive, they are insufficient to justify a renewal of faith in the military commission system. "They do not of themselves constitute an affirmative case for why prosecutions in the military commissions instead of Article 3 [civilian] courts is a wise course of action. On the contrary, I believe that case remains to be made," he said.

Denny LeBoeuf, an attorney for the American Civil Liberties Union, told the House subcommittee hearing that military commissions are "inherently illegitimate," saying that their continuing use would "further erode" the U.S. justice system. "We can't back away from what we are [setting] out to do here. And what I believe Congress is [setting] out to do is figure out a way to assess the cases at Guantanamo with a system of law that we and our allies can rely upon. And that is doable," he said.

Defense Department General Counsel Jey Johnson told lawmakers that a review of remaining detainee cases at Guantanamo Bay should be completed by the end of this year, and noted that some detainees could still be held for reasons of national security and public safety.

A Senate vote on revisions proposed by Senator Levin and others could occur as early as next week.