Rebuff for Bush on Terror Trials in a Senate Test
KATE ZERNIKE / New York Times 15sep2006
WASHINGTON, Sept. 14 — The Senate Armed Services Committee defied President Bush on Thursday, with four Republicans joining Democrats in approving a plan for the trial and interrogation of terrorism suspects that the White House has rejected as unacceptable.
The Republican rebellion was led by Senator John W. Warner of Virginia, the committee chairman, with backing from Senators John McCain of Arizona, Lindsey Graham of South Carolina and Susan Collins of Maine.
The White House had said their legislation would leave the United States no option but to shut down a C.I.A. program to interrogate high-level terrorism suspects.
The vote came on a frantic day of Republican infighting and despite an all-out effort by the White House to win support for its own approach, which provides far fewer protections for detainees.
Mr. Bush traveled to Capitol Hill with Vice President Dick Cheney on Thursday morning. The administration also released a brief letter in which the top lawyers for the military branches said they found no legal objection to the White House proposal to redefine a key provision of the Geneva Conventions.
But Colin L. Powell, Mr. Bush’s former secretary of state, sided with the senators, saying in a letter that the president’s plan to redefine the Geneva Conventions would encourage the world to “doubt the moral basis of our fight against terrorism,” and “put our own troops at risk.”
Mr. Powell’s statement amounted to a rare public breach with the White House he served, but reflected his strong opposition while in office to the administration’s assertions, beginning shortly after the Sept. 11 attacks, that the war against Al Qaeda should not be bound by the Geneva Conventions.
The White House made clear that it would fight on despite the Republican rebellion, with Mr. Bush saying he would “resist any bill’’ that did not provide a legal basis for the C.I.A. to continue to employ what he has called “alternative interrogation practices’’ for terrorism suspects.
The main dispute between the White House and the Senate Republicans revolves around a provision known as Common Article 3, which prohibits inhumane treatment of combatants seized in wartime. Gen. Michael V. Hayden, the C.I.A. director, has argued that the article’s prohibition against “outrages upon personal dignity” must be clarified so that troops and C.I.A. personnel know what is permissible in the interrogation of terrorism suspects.
But Senators Warner, McCain and Graham say the Bush proposal would send a signal that the United States has abandoned its commitment to human rights, and invite other nations to reinterpret the Geneva Conventions as they see fit, eliminating protections for American troops seized in future conflicts.
The senators also dismissed the letter from the military lawyers, saying they had questions about whether it amounted to an authentic endorsement of the White House proposal. They said they put more weight on extensive public testimony in which the lawyers raised doubts about the Bush plan.
Some military officials briefed on the military lawyers’ position also disputed the notion that the lawyers had reversed course. They said the lawyers agreed to sign a letter at a meeting on Wednesday after discussing the language over several hours.
The lawyers would agree only to say that they could not find anything illegal about the specific issue of amending Common Article 3, the defense officials said, but still do not endorse several points in the administration’s approach.
The senators say their bill will protect the C.I.A. by refining the war crimes act, which criminalizes violations of Common Article 3, to specifically enumerate what violations constitute war crimes.
“What General Hayden wants us to do is immunize him not from liability but from criticism,” Mr. McCain said after the vote, “because if one of his techniques is made public and he gets criticized, then he can say, ‘Well, Congress told me to do it.’ He’s trying to protect his reputation at the risk of America’s reputation.”
The other chief dispute concerns the evidence admitted at trial. The Bush plan would allow hearsay and evidence obtained by coercion if it is considered reliable, while the Senate proposal would exclude any testimony obtained by “cruel inhuman, or degrading treatment.”
The White House would bar the suspect from seeing classified evidence shown to the jury weighing his case; the senators say that this amounts to a secret trial, and that the suspect must be allowed to see anything the jury sees. They offered a compromise under which a judge would substitute a declassified summary of the evidence.
The committee vote was 15 to 9, with all Democrats joining the four Republicans. The measure now goes to the Senate floor, where Senators Warner, Graham and McCain believe they have a majority made up of Democrats and as many as a half-dozen other Republicans.
Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, warned the administration against taking on Mr. McCain, a former prisoner of war.
“They’re trying to reinterpret the Geneva Conventions,’’ Mr. Levin said, “but the best expert on that is somebody who has very personal experience with those who violate Geneva, and that’s Senator McCain.”
The situation in the House is very different, with that chamber on track to approve the measure backed by the White House.
“We’ll do what the president wants,” said Representative Duncan Hunter of California, the Republican who is chairman of the House Armed Services Committee.
The White House and Republicans on either side of the issue maneuvered furiously for advantage all day.
As the Senate Armed Services Committee met to vote on its alternative to the president’s legislation, an anonymous Republican invoked a Senate rule to stop it from meeting, forcing Mr. Warner to go to the Senate floor to ask that the hold be lifted. He then praised the Democrats for being “totally cooperative” on the issue, a pointed rebuke to members of his own party who have been pushing the White House view. And he prevailed upon Senator Bill Frist of Tennessee, the Republican leader, to persuade the senator calling for the hold to lift it.
The White House must now decide whether to press its allies in the Senate to amend the bill on the floor, or to step back and wait until the bill passes and the House and Senate work out differences in conference.
The bill may face amendment in any case. Some Democrats object to a provision that would block detainees from challenging their detention in court. More than two dozen retired federal judges sent a letter to Congress arguing that such a provision would lead to unlawful permanent detention, and defy Supreme Court precedent.
Sheryl Gay Stolberg, Mark Mazzetti and Carl Hulse contributed reporting.
source: http://www.nytimes.com/2006/09/15/washington/15detain.html?_r=1&oref=slogin&pagewanted=print 14sep2006