Sen. Charles E. Schumer, the New York Democrat who chairs the Senate Judiciary subcommittee that conducted the hearing Tuesday, said the DOD's refusal was unfortunate.
"I think that doesn't serve the purposes they seek, which is in coming to the right conclusion, because they're debating it right now," he said.
Three weeks ago, Bush issued an order to set up commissions of military officers as one option to try Osama bin Laden, members of his al Qaida organization and foreign nationals suspected of a role in the Sept. 11 terror attacks. He ignored Congress in drafting this order and tasked the Department of Defense to set up rules that would govern these special courts.
Tuesday's hearing of a Senate Judiciary subcommittee was the first attempt of Congress to find out how these tribunals would work. Earlier this week, Defense Secretary Donald Rumsfeld suddenly bowed out of a hearing planned for Thursday on the same subject before the Senate Defense Committee.
The only Bush administration witness to appear Tuesday, Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper, told the panel that Bush's tribunals are based on his power as commander-in-chief and within the powers of the U.S. Constitution. He said military courts of the United States and its allies sentenced 5,025 Germans and 4,200 Japanese soldiers accused of war crimes after World War II and that the member countries upheld these prosecutions.
Prosper, who served as a prosecutor at the International Criminal Tribunal for Rwanda, where he successfully prosecuted the first ever case of genocide, said the president draws his power for the tribunals from his role of commander-in-chief of the armed forces in a state of war against the Taliban and al Qaida.
He said Bush's order was even stronger than orders that supported post-World War II Far East trials. He said Bush has reserved for himself the choice of suspects who will be placed before these tribunals whereas after World War II, it was Gen. Douglas MacArthur who ordered the tribunals and military officers who picked who would face trial.
Prosper said that under Bush's order, John Walker Lindh, the 20-year-old American who surrendered with other Taliban fighters after holding out in a Mazar-i-Sharif's prison fortress, could not be tried by military tribunal, but might face U.S. court charges.
"Today the commission, as envisioned by the president and the military order ... are in conformity with these historical precedents, and the world's current efforts to prosecute war crimes through the ad hoc United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda," Prosper told the committee.
Though he said the State Department was involved in preparing Bush's order, Prosper had to defer a large number of the senator's questions to the Defense Department lawyers.
Several members of Tuesday's panel, including Schumer, Sen. Dianne Feinstein, D-Calif., Sen. Arlen Spector, R-Pa., Sen. Russell Feingold, D-Wis., and Sen. Richard Durbin, D-Ill., still seemed largely skeptical about whether the tribunals would protect the rights of defendants to the standards of the U.S. judicial system or whether other methods of trial could deliver the protections to national security information.
Feinstein was anxious to learn how much of the trials would be public and how much would behind close doors and whether the defendants would have lawyers of their own choosing. Prosper could not answer that question.
Durbin was anxious that the United States, which has criticized some 12 nations for using military courts, would lose world support for invoking military trials of its own.
But Prosper said that the 12 countries cited by the State Department had unfair military court trials and that it was not a criticism of the device of military courts.
Durban was also concerned that the president's order was too narrow since it only contemplated suspects involved in the World Trade Center and Pentagon terror attacks. "What about Hamas?" Durbin asked, posing the question of whether a suspect in the alleged Palestinian terrorist organization could be tried in a U.S. tribunal.
Prosper said the prosecutor would have to draw a nexus to armed conflict with the United States.