September 28, 2006
As the November mid-term elections rapidly approach, Congress finds itself rushing against the clock. Out of concern for the campaigning requirements of its members, it has set October 6 as its target adjournment date for the year. This means that the legislature has given itself only a scant few weeks between its August recess and its October adjournment to take care of several pieces of outstanding business. At a September 15 press conference, President Bush identified two such issues he felt that Congress must address before it recessed: military commissions for the detainees at Guantanamo Bay and new rules for the NSA's warrantless wiretapping program. It is surely possible that the time constraints Congress has placed on itself will motivate legislators to reach resolution either or both of these contentious issues. But it is more likely that such pressure will prove counterproductive, resulting in neither useful public policy nor a positive image of the United States abroad.
The first issue identified by Bush—military commissions at Guantanamo Bay—has long been a contentious one. But it has taken on a new urgency since the Bush administration's previous plan to try the detainees was invalidated by the Supreme Court in its June decision in Hamdan v. Rumsfeld (2006) (for background, see June's Capitol Watch). President Bush jump-started the current debate by acknowledging the existence of secret CIA-run detention facilities in which prominent terrorist suspects were detained and interrogated. He also announced that fourteen such suspects—including suspected 9/11 mastermind Khalid Sheikh Mohammed and co-collaborator Ramzi Binalshibh—had been transferred from their secret prisons to Guantanamo Bay, where they would be tried under the new procedures that Bush hoped to push through Congress.
Because many had thought that such prominent terrorist suspects would remain beyond the reach of any judicial process, such a transfer was a remarkable move. The administration's proposal for new military commissions at Guantanamo would have allowed prosecutors to use classified information at the detainees' tribunals, but would have forbidden the detainees access to—or even knowledge of—such evidence. Bush's proposal also would have redefined U.S. obligations under Common Article 3 of the Geneva Conventions, which forbids “outrages upon personal dignity” in the treatment of detainees. He sought clarification of these obligations so that CIA agents would be able to continue their interrogations of suspected terrorists: “This program has been one of the most vital tools in our efforts to protect this country … [w]e need this legislation to save it.” Some have even suggested that Bush also sought such legislation to retroactively legitimize the earlier torture of detainees. Mary Ellen O'Connell, a professor of international law at Notre Dame and critic of the Bush administration's detention policies, notes that "they want retroactive immunity … have you known of any other time in our history when we have tried to immunize public officials against crimes after they have committed the crimes?"
But the administration quickly discovered that the secret transfer of prominent terrorist suspects did not buy them much goodwill in Congress. Sens. John Warner (R-VA), John McCain (R-AZ), and Lindsey Graham (R-SC) formed a core of opposition that blocked the president's program in the Senate. Their position was supported by several military officials and by Colin Powell, Bush's own former secretary of state. Each of the maverick senators had their own reason for opposing Bush's proposal. Warner has close and longstanding connections with uniformed military leaders, many of whom privately opposed Bush's proposal; Graham has a great deal of experience in the military legal system and is a judge in the Air Force Reserve; McCain spent six years a prisoner of war in Vietnam, during which time he experienced torture first-hand. Regarding Bush's proposal, McCain noted that, “weakening the Geneva protections is not only unnecessary, but would set an example to other countries, with less respect for basic human rights, that they could issue their own legislative ‘reinterpretations.'”
The second issue identified by Bush—the NSA's warrantless wiretapping program—has also been contentious for some time (for background, see July's Capitol Watch). But like the military commissions at Guantanamo, this issue has recently taken on greater urgency. In August, a federal district judge in Michigan ruled that the wiretapping program violated the Foreign Intelligence Surveillance Act (FISA) as well as the First and Fourth Amendments to the Constitution. “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” wrote Judge Anna Diggs Taylor in her decision.
Prior to Judge Taylor's decision, Sen. Arlen Spector (R-PA) had announced that he had struck a deal with the administration regarding the program. One provision of Spector's bill would have allowed the president to submit the wiretapping program—in its entirety—to the FISA court to rule on its constitutionality, giving the administration free reign to continue the program without needing to seek individual warrants for each wiretap. Elsewhere in the Senate, a group of Republicans who last year had helped delay renewal of the Patriot Act—Sens. Larry Craig (R-ID), John Sununu (R-NH), Lisa Murkowski (R-AK)—advocated their own set of measures for any potential compromise on the NSA program. First, they wanted to remove the aforementioned provision from Specter's bill. Second, they wanted to remove language that referred to the president's inherent “constitutional authority” to pursue national security programs. And third, they wanted to ensure that warrantless surveillance could not be conducted on a U.S. citizen. Their proposal would also have required a court-issued warrant for wiretapping beyond 45 days, unless the attorney general certified to Congress that such a warrant could not be obtained but that the surveillance was necessary for national security.
In the House, Rep. Heather Wilson (R-NM) originally proposed a bill that would have given legal status to the wiretapping program only after a terrorist attack on the United States. She later revised her proposal to allow warrantless wiretapping if an attack was believed to be imminent and if Congress was notified of such a threat. The notification would have to be submitted within five days of the president's authorization of the surveillance, name the entity or entities responsible for the threat, state the reason for believing the attack is imminent, and describe the foreign intelligence expected to be obtained through the surveillance and the means of the surveillance. “Excesses are best prevented when intelligence activities are operated within a framework that controls government power by using checks and balances among the three branches of government,” Wilson noted.
Eager to adjourn and return to the campaign trail, Senators and Congressmen will continue to work feverishly on these and other contentious issues. In their haste, the fine print of any potential compromise may receive scant attention. On the issue of military commissions at Guantanamo, it appears as if the Bush administration may be willing to compromise on its demand to keep prosecution evidence from defendants in the commissions themselves. In return, Congress may retroactively exempt CIA interrogators from potential prosecution for violating U.S. and international law forbidding torture. There remains some uncertainty, however, on the precise definition of “unlawful combatant,” which has been the term used to describe the Guantanamo detainees. The Senate version of a potential compromise defines them as those persons “engaged in hostilities against the United States;” a House version defines “unlawful combatants” as those persons “engaged in hostilities or who [have] purposefully and materially supported hostilities against the United States." On the issue of the NSA's warrantless wiretapping program, Specter's bill and Wilson's revised bill would seem to meet the president's demands. It also appears that the administration may be willing to compromise on the demands put forward by Craig, Sununu, and Murkowski. But it remains unclear as to whether Congressional Democrats would allow either bill to reach the president's desk for his signature.
To be sure, a fair and reasoned compromise on either issue would be a desirable outcome. But the time constraints that Congress has placed upon itself are purely artificial; in their haste, legislators may well pass inferior bills. The reason for the constraint itself may also serve to hamper the legislative process. Senators and congressmen are eager to return to the campaign trail and to demonstrate to their constituents that they deserve to be sent back to Washington DC. Such pressure to produce electorate-friendly legislation could easily result in poorly reasoned public policy.
It is on a broader, more international level that such legislative haste may prove the most damaging. Around the world, the U.S. Congress is seen as debating the merits of torture and of liberal jurisprudence. The tragedy, however, is that such a perception is precisely accurate. It has been widely noted that the United States is a country bound not by ethnicity, religion, or race, but rather by ideals. When the supposed temple of such ideals—the U.S. Congress—debates the issues it has been, in such a rushed and hasty manner, it raises serious questions about the moral legitimacy of the United States on the global stage. That, ultimately, may be the most lasting result of the current Congressional rush.
Daniel Widome is a San Francisco-based writer and foreign policy analyst. He can be contacted at Daniel.Widome@gmail.com.