Monday 27 December 2004

Congress has been largely absent as questions grow about prisoner abuses and detention policies, but the lack of clear interrogation rules may finally get attention.

Washington - Graphic reports of widespread prisoner abuse in Iraq and at Guantánamo Bay continue to rise, with the latest reports coming from the FBI.

Federal judges are struggling to determine how far they can go in reviewing the detention and treatment of those the government classifies as enemy combatants. And the Bush administration is asserting broad powers to detain and interrogate foreign suspects but has lost several court battles over the matter.

Yet through it all, Congress has been largely absent.

"That branch has really abdicated its responsibility to set rules and oversee what's happening, and we are paying a price for it," said retired Rear Adm. Don Guter, who was judge advocate general in the U.S. Navy when the Guantánamo Bay, Cuba, prison camp was set up three years ago.

'Very Big Deal'

As a result, the U.S. military is operating in something of a vacuum, amid confusion and ambiguity over how to treat prisoners.

"This is a very big deal," said Sen. Lindsey Graham, R-S.C., who is a member of the Air Force Reserves and served as a prosecutor in the Judge Advocate General's Corps, the military's legal branch. "We need to bring some order out of legal chaos right now, because it's hurting the military and hurting us around the world."

Graham and other members of the Armed Services and Judiciary committees say they want to pin down top administration officials to clarify practices for interrogation and detention.

White House Counsel Alberto Gonzales, who has been nominated to become attorney general, can expect detailed questions about memos that he and others wrote about the legal boundaries of torture when he faces a confirmation hearing Jan. 6.

"I told him he will be questioned closely on this," Graham said. "Some of those memos refer to the Geneva Conventions as a nicety. It's not a nicety at all - it's the law."

The Geneva Conventions ban not only torture but "inhumane and degrading treatment" of prisoners.

Momentary Concern

After the Abu Ghraib prison scandal erupted in the spring, with its graphic photos of Iraqi prisoners being humiliated and otherwise abused, the Senate Armed Services Committee focused on the issue - for a couple of weeks.

But the committee backed off after the Pentagon launched investigations into the abuses and began court-martial proceedings against some soldiers.

White House and Justice Department officials pledged to come up with definitive legal guidance for interrogations for the military, the CIA and other agencies. The guidance should be ready soon, said Justice Department spokesman Mark Corallo.

Congress has done little on the legal front since the Sept. 11 attacks, allowing the Bush administration to assert broad wartime powers that included jailing U.S. citizens as enemy combatants without charges, among others.

But the administration suffered serious court setbacks as Congress stood by.

And the recent disclosures of prison abuse in Iraq and Guantánamo came from FBI files that were made public by a federal judge in a Freedom of Information suit brought by the ACLU.

"That's the sort of thing Congress should be doing, bringing out in hearings and questioning top officials, but they're not," said Elisa Massimino, the Washington director of Human Rights First.

One big question that Republican leaders on Capitol Hill may have is deciding how high up the chain of command to go to look for who authorized the harsh interrogation techniques used in Afghanistan, Guantánamo and Iraq.

The FBI files showed that the bureau's top official in Iraq, who has not been identified, believed in May that President Bush had authorized the military to use coercive tactics such as intimidation with military dogs and sensory saturation or deprivation.

Two officials knowledgeable about the authorization process, who spoke on condition of anonymity, said the FBI memo writer was mistaken, but that top Defense officials, including Secretary Donald Rumsfeld, had signed off on the techniques.

Graham said: "This isn't just privates and sergeants - we have to look up the chain of command."

Former Leaders

Congress also faces pressure from former military leaders. Eight retired generals and admirals are seeking an independent commission to probe interrogation abuse reports.

"The integrity, effectiveness and honor" of the U.S. military is at stake, they said.

On the legal front, courts will act if Congress doesn't, several experts predicted.

Last month, a federal judge halted military commission proceedings at Guantánamo, citing a lack of due process. Two other judges are wrestling with petitions from 63 detainees challenging their captivity and alleging mistreatment.

What's Binding?

One of those judges, Richard Leon, framed the issue as he quoted Article I, Section 8 of the Constitution: "Congress shall have the power to declare war . . . and make rules concerning captures on land and water."

"Well, Congress has not acted, though it has the express constitutional authority," Leon said. "In a war unique in the history of our country, what rules are binding?"