The military commissions legislation was made necessary by a recent Supreme Court decision, which declared such tribunals (intended for use at Guantanamo Bay) unlawful. The Supreme Court decision, contrary to many media reports, did not declare military commissions unlawful. As The Heritage Foundation’s Todd Gaziano explained, the decision was “not a rebuke of the Bush administration’s conduct of the battle against the threat of transnational terrorist groups. The decision will have little practical impact on fighting the long war. Nothing has changed the fact that the government must fashion a means to adjudicate the status of detainees that satisfies both the rule of law and U.S. national security interests.”
The legislation scheduled to be debated next week in Congress is the legislative branch’s effort to do just that.
PARTISANSHIP LOOMS
Unfortunately, it is likely that next week’s debate on these very serious measures will be less than genuine. Congressional Democrats appear determined to oppose both of these measures, partly to prevent Republicans from having an election-year accomplishment. Moreover, not all Republicans are united on the issues.
In the Senate a renegade group of powerful Republican dissenters is led by Senate Armed Services Committee Chairman John Warner. He’s joined by Senators John McCain and Lindsey Graham in offering an alternative proposal that would allow terrorists tried in these commissions to know classified information pertaining to their trial. The administration vigorously opposes this approach, as it could lead to the leaking of sensitive classified information to the enemy. Nevertheless, Warner, McCain and Graham appear determined to move ahead with their proposal. That would leave the administration approach vulnerable and in need of Democratic support to pass.
If the Democrats’ reaction to the President’s speech this week is any indication, that support is highly unlikely.
Pennsylvania Senator Rick Santorum (facing a tough reelection fight) summed up the atmosphere in Congress in a Tuesday floor speech. “We just cannot get past the politics around here, just cannot get past the partisan advantage around here,” said Santorum. “We cannot face the reality that we have a dangerous enemy out there who wants to destroy everything we hold dear, an enemy who is very clear about what they want to accomplish.”
Putting domestic political considerations above significant constitutional questions that will have national security ramifications is a recipe for bad policy -- bad policy that a nation engaged in a long war against terrorists cannot afford.