"There certainly is no consensus here to just rubber-stamp what's in place," said Senate Armed Services Committee Chairman John Warner, R-Va., at a hearing on the controversial military commissions the Supreme Court last week ruled illegal.
As many as 80 to 100 prisoners held at Guantanamo may ultimately face military tribunals for their alleged war crimes, according to the Pentagon.
At issue is what procedures will be used to try them. The White House in 2001 created a special court that limited the rights of the accused to see and rebut evidence against them and to attend their entire hearings. The process has been challenged in dozens of court cases, and was finally struck down last week by the high court.
The White House wants Congress to write the military commission procedures into law so the process can push forward.
But military judge advocates general favor a rewrite of the rules, melding procedures from international courts and tribunals with the Unfirm Code of Military Justice to create a flexible system that takes into account the exigencies of war and that does not constrain combat troops or intelligence gathering.
"We need to think in terms of the long view, and to always put our own sailors, soldiers, Marines, and airmen in the place of an accused when we're drafting these rules to ensure that these rules are acceptable when we have someone in a future war who faces similar rules," said Navy Judge Advocate General Rear Adm. James E. McPherson.
The Navy's general counsel and JAG were instrumental in reining in harsh interrogation practices at Guantanamo Bay Naval Base, where the detainees are held.