As U.S. Politics Guide Kathy Gill wrote at the time, the decision made it "clear that simply being Commander-in-Chief is insufficient authority for what has happened at Guantanamo Bay for the last four years. Falloutpolitical and otherwisewill follow. And the Court has placed Congress, not the President, at the center of that action."
The Congressional Fallout
At the invitation of the Supreme Court, the President approached Congress with the hope it would legislate a lower standard of accountability to Geneva Conventions. Several Republican Senators balked, however, in part because an American withdrawal from its treaty obligations might prompt other countries to do the same, thus exposing American armed forces to reduced judicial guarantees.
On September 21, Bush and the Senators came to an agreement for new legislation they hope will be passed by the end of September. The challengers, who included Sen. John McCain (R-AZ), Senate Armed Services Committee Chairman John Warner (R-VA) and another Committee member Senator Lindsey Graham (R-SC), pronounced themselves pleased with the agreement, as did the President.
However, potential barriers to a new bill's quick passage remain. It is unclear that the new bill will be considered before Congress recesses in early October to prepare for elections. Nor is House approval of the bill guaranteed.
Terms of the Agreement
The terms of the new agreement will include:
- Setting up a new military tribunal system.
- Amending the U.S. War Crimes Act. to explicitly detail which interrogation techniques will be considered war crimes. The current law defines as a war crime any "grave breach" of the 1949 Geneva Conventions, which prohibit "violence cruel treatment and torture" of prisoners of war. However, the president will retain discretion to determine the specific interrogation practices will be permitted.
- Allowing defendants to see all evidence that is presented to a jury. However, prosecutors will maintain to consult classified evidence without sharing it, as long as they do not use it at trial.
The new legislation will override some parts of the Detainee Treatment Act signed into law in December, 2005.