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Senators Discuss Trials for Guantanamo Detainees

MICHELE NORRIS, host:

And as we just heard, the Senate today, began in earnest to explore exactly how the Guantanamo detainees should be tried. The Supreme Court has said President Bush's system of military commissions violates U.S. and international law. Now, Congress is trying to fix the problem. NPR's Ari Shapiro reports on today's hearing in the Senate Judiciary Committee.

ARI SHAPIRO reporting:

Lieutenant Commander Charles Swift was a defense lawyer for Guantanamo detainees. Sitting before the Senate Judiciary Committee, he described some of the ways the commissions at Guantanamo Bay differed from civilian trials. He said defense lawyers at Guantanamo couldn't call witnesses, or have statements made under torture, dismissed. His team couldn't access evidence that might prove the detainee's innocence. In short, he said, he and his colleagues weren't able to provide a real defense, at all.

Lieutenant Commander CHARLES SWIFT (Attorney, Guantanamo Bay Detainees): The disregard for the principals of justice in the commissions, has increasingly put members of the Chief Defense Counsel's office in the position, where they would either violate ethical requirements incumbent on their practice of law, or face criminal charges for the violation of military orders. To do one's job in an ethical manner, should not require a military attorney to risk criminal sanction.

SHAPIRO: For that reason, Swift urged Congress to create a system of tribunals that complies with the Uniform Code of Military Justice. But Daniel Dell'Orto, who represented the Defense Department at the hearing, said the established military justice system, with its guarantees of defendant rights, will not work for the detainees at Guantanamo Bay.

Mr. DANIEL DELL'ORTO (Attorney, U.S. Defense Department): Asking our fighting men and women to take on additional duties traditionally performed by police officers, detectives, evidence custodians, and prosecutors, would not only distract from their mission, but endanger their lives, as well.

SHAPIRO: He said the military would essentially have to fight al-Qaida twice, once on the battlefield, and again in the courtroom. He said it's simply not workable to call witnesses from Iraq and Afghanistan, or to produce evidence that came from a raid on an insurgent hideout. He urged Congress to pass a law giving the president authority to write the rules for these trials. Judiciary Committee Chairman Arlen Specter said that's not likely to happen.

Senator ARLEN SPECTER (Republican, Pennsylvania): We're not going to leave it to the Department of Defense or give the Department of Defense a blank check. We're going to establish the standards and the policy, but we want your input before we do it.

SHAPIRO: Specter gave the Defense Department and the Justice Department two weeks to provide a detailed description of how they think a new system of military tribunals ought to look - when detainees should get a lawyer, whether coerced confession should be allowed, and what the standard of proof should be for a conviction. Democrat Charles Schumer of New York, demanded to know why the Justice Department hasn't formally reexamined many of its other wartime policies, in light of the Supreme Court's ruling that the White House overreached on its detainee trial policy.

Senator CHARLES SCHUMER (Democrat, New York): Why doesn't the administration take a more formal process and review it, to avoid this happening again? This makes me think - you know, everyone makes mistakes. But when you've made a lollapalooza like this one, and then you say, business as usual - I get worried.

SHAPIRO: The Justice Department's witness, Steve Bradbury, said his office constantly reviews legal policies in light of court rulings and this Supreme Court ruling is not different. Republican Senator Lindsey Graham, of South Carolina, said he'd rather look forward. Graham was a military lawyer in the Persian Gulf War, and he said he believes the Uniform Code of Military Justice is the best jumping-off point for a new detainee policy. And, he said, if the new policy for detainee trials differs from the UCMJ:

Senator LINDSEY GRAHAM (Republican, South Carolina): You need to show why the changes were made. Convenience is not enough. And you have to prove, through some legislative history, that a practical application of the Uniform Code of Military Justice to a terrorist suspect, is inappropriate.

SHAPIRO: He said, if the administration goes along with that approach, the product will be a system that can withstand court scrutiny. If the administration does not cooperate, Graham said, it could be a long, hot summer. Ari Shapiro, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Ari Shapiro
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.