WASHINGTON, July 14 (UPI) -- A major constitutional battle may be brewing between the Pentagon and the Senate Armed Services Committee over prisoners i the war on terror.
Sen. Lindsay Graham, chairman of the personnel subcommittee, said the Senate is poised to write legislation that would affect the military's detainment operation at Guantanamo Bay Naval Base.
"Congress has been AWOL," Graham said Thursday. "We've been absent dealing with the policy over the capture of people on land and sea."
Sen. Ron Wyden, D-Ore., put a finer point on the self-criticism.
"It seems to me Congress has been derelict in not meeting its responsibilities," Wyden said.
Both men were referring to the U.S. Constitution, which expressly gives Congress the power to "make rules concerning Captures on Land and Water."
Defense Department Principal Deputy General Counsel Daniel Dell Orto said the Pentagon would oppose any attempt to write laws governing the detention of prisoners in the war on terror.
"Legislation is not necessary," he told the subcommittee.
He said the fact that Congress on Sept. 18, 2001, authorized the president broad powers to pursue the global war on terror gave the executive branch the right to conduct the war how it sees fit.
"That gives him an awful lot of authority," Dell Orto said, under questioning from Sen. John McCain, R-Ariz.
McCain asked Dell Orto if he was familiar with Article 1, Section 8 of the U.S. Constitution which gives Congress the power to make rules regarding prisoners of war, and then read him an excerpt.
"I'd have to check the Constitution," Dell Orto replied.
Dell Orto argues that while the prosecution of detainees by military tribunals created in the wake of the Sept. 11 attacks to deal with captives is now being challenged in U.S. courts, congressional action wouldn't change it.
"Regardless of legislation, we're gonna stay in litigation. That's the kind of world we are in," he said. "I don't think we need any additional authority."
What Graham is offering, however, is not additional authority for the president. Instead, he is contemplating legislation that would hem in detainee operations conducted in the war on terror.
President George W. Bush decided in 2001 that prisoners captured in the war on terror would not have the protections of the Geneva Conventions that regular soldiers do because the Taliban was not a signatory and al Qaida was an illegal fighting force. Instead, they were to be considered "enemy combatants" and treated "humanely" while they were held for interrogation and eventual release or trial by commission.
The Senate hearing was held a day after the Pentagon released a report on FBI allegations of detainee abuse. The investigation found that in at least two cases, prisoners were subjected to "degrading, abusive" treatment but that it was not inhumane.
The Pentagon maintains any abuses of detainees is the result of human failure rather than flawed policy.
The term "enemy combatant" is not found in the Geneva Conventions, which has established the rules of conflict for the last half century.
It is set to be included in new military doctrine, defined as those who fight outside the protections of the Geneva Conventions because they are members of designated terrorist organizations or other irregular groups.
The designation encompasses not just Taliban soldiers captured on Afghan battlefields but also an American citizen arrested in at U.S. airport on the allegation he had met with terrorist bomb makers. Indeed, in court filings U.S. government lawyers have argued that an old woman who writes a check to a charitable organization that fronts for al-Qaida could be captured and held as an enemy combatant.
The Pentagon confirmed last year all fighters in Iraq were to be covered by the Geneva Conventions by dint of geography: Iraq was a signatory to the treaties as is the United States, and therefore both were bound by it.
"In the conflict with Iraq, there is absolutely no question that the Geneva Conventions, the third and fourth Geneva Conventions apply, period," a senior defense official told reporters May 21, 2004.
However, a Kuwaiti-born Jordanian -- who is also a naturalized U.S. citizen -- who was captured in Iraq in December was designated by the U.S. military in Iraq an "enemy combatant."
Graham believes putting a congressional stamp on the legal definition of the term "enemy combatant" and the amount of time they can be imprisoned without being charged and without facing a trial would blunt international criticism and give the United States clear moral high ground to fight the war on terror.
"We're missing a golden opportunity to get the war on legal track, and allow us to take it to this enemy," Graham said. "We can't afford any more political fights."
Graham is also considering legislation that would limit the amount of time enemy combatants could be held in detention and interrogated. The Pentagon argues the Geneva Conventions allow prisoners to be imprisoned until the end of the conflict to keep them off the battlefield, and they want to do the same with enemy combatants. However, military and defense officials say the war on terror could go on indefinitely.
Sen. Ron Wyden likened that open-ended approach to creating "a human reference library down there without any set of rules."
Sen. Ben Nelson, D-Neb, said the legislation is necessary "to reaffirm this is a nation of laws and we are not succumbing to tactics of those against which this battle is being waged."
