JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says although leading Republican senators are to be praised for advancing legislation to protect detainees and give them a fair trial before military commissions, there are still so many open questions about the fundamental issues involved and so little time to resolve them that Congress should avoid passing a bill before its 109th session adjourns…

Republican Senators John Warner of Virginia, John McCain of Arizona and Lindsey Graham of South Carolina deserve credit for drafting, and encouraging the Armed Services Committee to adopt, high-profile legislation, which treats the complex questions posed by military tribunals that would try suspected terrorists. Warner, who is the Committee Chair, as well as Senators McCain and Graham, who are members, cooperated in drafting that bill. Warner, who served in World War II and as Navy Secretary; McCain, who fought in Vietnam and whom the North Vietnamese held as a POW for over five years; and Graham, who was an Air Force Judge Advocate General pushed for their legislation’s approval and resisted pressure from the White House and Senate leaders to support legislation favored by President George W. Bush. The three GOP senators said the administration bill would not adequately protect Americans whom other countries detain, although the three senators reached a “deal” with the White House on Thursday. However, that deal leaves so many crucial particulars unclear that lawmakers should not pass legislation before the 109th Congress adjourns.

The dispute over military tribunals arose from President Bush’s November 2001 Executive Order, which unilaterally established military tribunals to try terrorist suspects. No trial has proceeded to verdict under this system. Mr. Bush recently announced that fourteen al-Qaeda operatives would receive tribunal trials. Salim Ahmed Hamdan, a defendant in one early trial, challenged that proceeding. In June, the U.S. Supreme Court ruled for Hamdan and invalidated the tribunals, although the Court did suggest that Congress had the power to authorize tribunals.

Throughout the summer, the Bush Administration and Congress drafted legislation to authorize tribunals. In the week of September 11, lawmakers introduced the administration bill. On September 14, the Senate Armed Services Committee approved legislation primarily written by Senators Warner, McCain and Graham on a 15-8 vote. The Committee bill differs in several important respects from the administration legislation.

One critical specific involves treatment of the Geneva Conventions and Common Article 3. The Committee bill would leave intact these treaty obligations as they have existed for fifty-seven years. In contrast, the administration bill requires greater particularity in terms of the Conventions’ general language and could provoke other countries’ “reinterpretation” of their treaty obligations to the detriment of Americans whom they detain and try.

A second principal area of disagreement is evidentiary. The Committee legislation respects a fundamental principle of American constitutional law – that defendants are entitled to know the evidence against them. The Committee bill would permit considerable access even to classified national security information in a manner analogous to what happens in federal court trials and trials conducted under the Uniform Code of Military Justice. In contrast, the administration legislation would narrowly confine and even prohibit that access.

Last Thursday, the White House and the three GOP senators struck a “deal,” the specifics of which still remain somewhat unclear. For example, the legislation seemingly will not reinterpret the Geneva Conventions but leaves to presidential discretion the definition of practices which U.S. interrogators might employ. The deal also leaves unclear exactly what evidence secured through questionable procedures may be admitted at trial and the precise evidence against defendants to which they would have access.

Despite the valuable parameters, and additional helpful aspects, of the legislation adopted by the Armed Services Committee, that bill and last Thursday’s deal include some disadvantages and unclear features. One crucial issue is the attempt essentially to strip the federal courts of habeas corpus jurisdiction, the centuries-old writ that is meant to prevent arbitrary executive detentions. The Senate Judiciary Committee conducted a Monday hearing on habeas corpus, which emphasized the questions regarding habeas and the bill’s lack of clarity. Indeed, Senator Arlen Specter (R-Pa.), the Chair, observed that the lack of a written bill embodying the deal hindered the Committee’s efforts.

Senators John Warner, John McCain and Lindsey Graham deserve credit for drafting legislation that honors the Geneva Conventions and that provides defendants who are tried in military tribunals considerable access to evidence against them. These procedures would better protect Americans whom other nations detain and try. However, Thursday’s deal leaves so many questions unclear and Congress has so little time to elucidate critical, unresolved issues that lawmakers should adjourn without passing legislation.

Carl Tobias is the Williams Professor of Law at the University of Richmond
——–