Pitted against one another in what is already shaping up as an increasingly contentious and bloody battle are Republicans who would like to see the Congress simply affirm what the president has been doing since the terrorist attacks of September 11th 2001, and other Republicans who are pushing for a set of clearer and fairer rules governing detention and interrogation.
Republicans who favor a change in the Administration's policies and procedures are being joined by most Democrats. But neither political party is eager to take on this battle in an election year. Republicans fear the electoral impact of a public split in their ranks. And Democrats fear that voters will equate granting more due process and more humane treatment to alleged terrorists with "being soft on terror."
But the poorly concealed back-story of this battle is a struggle for power between the President and the Executive Branch of Government on one hand and, on the other, the two houses of Congress that represent the Legislative Branch. The U.S. Constitution specifies that these two branches of government - along with a third branch, the Judiciary - are co-equals.
This determination is likely to affect not only prisoner detention and treatment, but also a number of other Administration programs that have been implemented by the President without approval by - or, in some cases, even knowledge of - Congress.
These include the National Security Agency's (NSA) widespread wiretapping of American citizens allegedly speaking with members of Al Quaida overseas, and the NSA's collection of millions of American citizens' telephone records.
The Constitution specifies that searches of American citizens and seizure of their property cannot be carried out without a court finding of "probable cause" and a court-issued warrant. In 1978, Congress passed the Foreign Intelligence Surveillance Act, known as FISA, and established a special court to issue warrants for searches involving American citizens. In carrying out the NSA programs, the President publicly declared that no wiretaps were ever conducted without warrants, but in fact he ignored the FISA law, claiming "inherent authority" under the Constitution to protect the nation's citizens in time of war. Many Constitutional scholars have questioned that authority.
The issue of prisoner detention and treatment was triggered by a Supreme Court decision late last month in a suit brought by a Guantanamo Bay detainee, Salim Ahmed Hamdan against Donald Rumsfeld, U.S. Secretary of Defense. The Court ruled 5-3 that the Yemeni detainee could not be tried by a special military commission established by the Administration without Congressional authorization. The court also held that the commissions violate the Geneva Conventions, especially the conventions' Common Article 3, which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."
The coming clash among Republicans, and between Republicans in the House of Representatives and the Senate, was previewed during separate committee hearings last week.
Republicans on the powerful House Armed Service Committee indicated they were inclined to give the Bush administration largely what it wants in the conduct of terrorism trials.
"This could be easy," said Rep. Candice S. Miller, a Michigan Republican, who proudly announced she has neither a law degree nor a college degree as she denounced the high court's 5 to 3 decision against the tribunals as "incredibly counterintuitive." "We could just ratify what the executive branch and the [Department of Defense] have done and move on."
"That would be a very desirable way to proceed," said Daniel J. Dell'Orto, the Pentagon's principal deputy general counsel, who set out the president's position.
Rep. Duncan Hunter, a California Republican who chairs the House Committee has long been an advocate of the Bush administration's handling of detainees. He believes that the Pentagon has been too lenient with terror suspects, and has said, in "some cases we erred on the side of letting people go who we should not have let go." Hunter was referring to detainees released from the Guantanamo Bay military prison, which currently holds about 450 suspected terrorists.
Hunter said, "We have to give the executive the tools to fight this war. This is not a separation of powers issue. It is an issue of how to defeat the enemy."
The tone at this first House hearing was distinctly different from the next day's hearing by the Senate Judiciary Committee, where lawmakers from both parties said they wanted to make significant changes to the White House's plans.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
