Two months after 9/11, President Bush announced a bold and controversial initiative. Under his power as commander in chief, he created a streamlined process in the military justice system to try members of Al Qaeda for war crimes.
The national debate that followed was rigorous and, at times, heated. But it produced no specific legislation affirming the new military-commission system.
Now, on the heels of a US Supreme Court rebuke of Mr. Bush for acting without clear legislative support, the debate is taking place again – this time in the halls of Congress. At issue is to what extent suspected terrorists should be afforded the same fair-trial protections as US soldiers facing prosecution in courts-martial.
The Bush administration and its supporters have said that generous procedural protections may make it difficult or impossible to prosecute some terrorists without revealing sensitive intelligence sources and methods.
Other analysts say that how the United States treats its captured enemies reveals something fundamental about America's character as a nation. They urge that Al Qaeda suspects be granted the same due process protections as American soldiers under the military justice system.
"If you set the higher standard, it is a signal to the rest of the world that we are treating these people under the rule of law," says Scott Silliman, director of the Center on Law, Ethics and National Security at Duke Law School.
In its ruling on June 29, the Supreme Court said the president's military commission process did not provide the minimal level of trial protections required under the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions.
"The military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts-martial; it developed, rather, as a tribunal of necessity," says Justice John Paul Stevens, discussing the history of such commissions in his majority opinion. "Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections."
The challenge for Congress is to decide how best to balance the concerns raised by the Supreme Court against the flexibility desired by the Bush administration. Specifically at issue is whether to retain or rewrite rules that heavily favor prosecutors by allowing hearsay and coerced statements to be introduced as evidence. Stricter rules of evidence might prevent prosecution of terrorists where testimony was obtained through harsh interrogation tactics, legal analysts say.
The rules also allow for a defendant to be excluded from any portion of his trial dealing with classified information. Although the rules permitted an appointed military defense lawyer to attend the closed portions of the trial, the military lawyer was barred from ever disclosing or discussing the classified evidence with the defendant.
The Supreme Court did not announce a strict standard. Instead, the majority justices quoted a provision of Common Article 3 that requires the military commission be "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
It will now be up to Congress to decide which judicial guarantees are "indispensable" in the context of military-commission proceedings against accused terrorists.
"Justice Stevens has done us all a favor," says David Rivkin, a Washington, D.C., lawyer who worked in both the Reagan and first Bush administrations. "This is a road map of how to fix" the commission process.
Mr. Rivkin notes that the Supreme Court invalidated the commission system based on statutory grounds, rather than identifying constitutional violations. Congress can respond to statutory problems by rewriting the law, Rivkin says.
He says Congress will probably preserve most of the Bush administration's approach. "The bottom line is you are going to hand up procedures that are probably a little less sweeping than the existing commission rules, but not by much," he says.
Others are pushing for broader protections. The Washington-based National Institute of Military Justice is proposing that Congress rewrite the UCMJ to mandate that military commissions use the same procedures as general courts-martial. "This was a very poor likeness of military justice," says NIMJ President Eugene Fidell of the invalidated commission process.
Mr. Fidell acknowledges that tougher trial standards may mean that some terror suspects are never brought to trial. "There are times when you have to do that," he says.
Professor Silliman, who served for 25 years as an Air Force judge advocate, agrees. "We are under a tremendous amount of attack in the world's public opinion as a result of the atrocities in Iraq and our handling of Guantánamo Bay," he says.
Rivkin, who supports more relaxed trial standards, says military jurors will be able to work through the evidence and other issues, and render fair verdicts. But he says the larger issue is not which procedures Congress enacts, but that Congress recognizes the symbolic importance of treating terror suspects differently. He says those who comply with the law of war deserve certain protections. Terrorists, who follow no rules or law, should not, he says.
Says Rivkin: "Here, society is saying: 'These people aren't just criminals; as terrorists, they are something else.' That doesn't mean they don't get due process, you just slice it differently."