Two weeks after the Supreme Court rejected the Bush administration's system for prosecuting war-on-terror detainees, congressional lawmakers are sharply divided over a plan to replace it.
In dramatic testimony in Congress this week, administration officials signaled that – even if Congress speaks with one voice in revamping the Bush plan for military commissions – the president and the Pentagon don't need lawmakers' advice.
Asked repeatedly to engage senators on what should be proper standards for the treatment of detainees, administration witnesses declined to respond. "What we need to address in legislation is the military commission procedures, and court review process," said Steven Bradbury, the Justice Department's witness at a Senate Judiciary Committee hearing on Hamdan v. Rumsfeld on Tuesday.
Several lawmakers disagreed. "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense," said Sen. Arlen Specter (R) of Pennsylvania, who chairs the Senate Judiciary committee.
Responding to witness rebuffs of his proposal for revamping treatment of detainees, Sen. Lindsey Graham (R) said: "If you fight that approach, it's going to be a long, hot summer."
At stake is whether the GOP-controlled Congress will give President Bush the legislative cover he needs to continue to pursue the war on terror as he sees fit or whether lawmakers intend to rein him in.
Detainees are likely to be the first proving ground for Congress to determine the president's license in the war on terror.
"If the administration merely says to the Congress: We want you to rubberstamp the president's [tribunal] program as it exists, that would be the worst thing that could be done," says Scott Silliman, a retired Air Force judge advocate at Duke University School of Law. "If you're going to have a good system that is going to withstand court challenge and be looked at as fair and appropriate by the rest of the world, it can be done, but it requires both branches [Congress and the White House] working together."
In the months after the 9/11 attacks, lawmakers proposed working with the White House to develop a plan for the treatment of detainees in the war on terror, but the president opted to go it alone. The Supreme Court's decision in Hamdan v. Rumsfeld puts Congress back in the mix.
From detainee rights to domestic surveillance without a warrant and other programs yet undisclosed, lawmakers on both sides of the aisle are demanding enough information about programs to conduct oversight and, if necessary, draft new laws.
Following press disclosures last year of a secret program of domestic surveillance, Senator Specter has been negotiating with the White House over how to bring the program into conformity with existing law. But because most lawmakers have not been briefed on what the program actually does, many say they are forced to legislate in the dark.
In effect, the White House is saying: "We're not going to tell you what we're doing, but go write a law," says Sen. Jack Reed (D) of Rhode Island, a point man for Senate Democrats on the war on terror. For Congress to give the White House appropriate legal authority for such surveillance activities, it must be more fully briefed, he says.
Republicans who have been strong supporters of the Bush White House in the war on terror are also restive. In a private letter to the president, disclosed on Sunday, Rep. Peter Hoekstra (R) of Michigan, chairman of the House Permanent Select Committee on Intelligence, criticized the administration for not "fully and currently" briefing the panel on all its intelligence programs. He says he has learned of alleged intelligence community activities his committee has not been briefed on.
"It is not optional for this president or any president or people in the executive community not to keep the intelligence committees fully informed of what they are doing," he said in an interview on "Fox News" on Sunday.
In Hamdan v. Rumsfeld, the Supreme Court ruled 5 to 3 that Mr. Bush's plan for military tribunals to try detainees in the war on terror did not comply with the Uniform Code of Military Justice. The court faulted the administration for failing to get congressional approval.
Now, lawmakers are reopening a debate on what constitutes a fair trial for prisoners in a global war on terror: Should detainees have a right to counsel to contest their detention or to see classified information important to their defense? Should a statement from a detainee be used if it was coerced? Can hearsay evidence be used in a trial?
Any new plan for the treatment of detainees should start with the Uniform Code of Military Justice, passed by Congress, Senator Graham and many Democrats say. If some rules, such as those barring the use of hearsay evidence, are inappropriate for prosecuting detainees, Congress could change them, they say.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary panel, calls the White House's refusal to work with Congress in November and December of 2001 "a mistake of historic and constitutional proportions." Now, there's a new chance to develop bipartisan legislation creating military commissions that comply with the law, he says.
"We need to see a realization by this administration that it's Congress that writes our laws, and that no officeholder, branch, or agency of our government is above the law," he said Tuesday.
But it's not clear that other Republicans, including the chairmen of the House and Senate Armed Services Committees, will back a plan that forces the Bush administration to give detainees more rights – or to alter administration policy in any significant way.
"The American people will not look favorably on this Congress if it gives Al Qaeda terrorists more generous protections and procedures than criminal defendants in US courts and our own military personnel," says Sen. John Cornyn (R) of Texas, a member of the Senate Judiciary Committee.