WASHINGTON – Sen. Mitch McConnell, R-Ky., said Sunday that Congress must address the Supreme Court's "very disturbing" finding that international law applies to the Bush administration's conduct of the war on terror.
Thursday's Supreme Court ruling embracing Article 3 of the Geneva Accords in the military commission case of Usama bin Laden's former driver strikes at the heart of the White House's legal position in the war on Al Qaeda.
McConnell, the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes.
"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press."
The Geneva Convention's Article 3 is "far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should," said Sen. Lindsay Graham, R-S.C., a Reserve Judge in the Air Force Court of Criminal Appeals. Graham spoke on "FOX News Sunday."
Sen. John McCain, R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists."
Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is.
Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.
McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses another aspect of the court's ruling overturning President Bush's military commissions created to try a limited number of detainees from Guantanamo Bay.
"I don't think we're going to pass something that's going to have our military servicemen subject to some kind of international rules," said McConnell.
Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might pose broader changes than the White House wants in trials of detainees at Guantanamo Bay.
As a starting point for debate, McCain said Congress should embrace the Uniform Code of Military Justice, the bedrock of military law protecting the rights of accused soldiers. The Bush administration has sidestepped the code for nearly five years in dealing with Guantanamo Bay prisoners it has classified as enemy combatants.
Specter said that "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says.
Specter spoke on CBS's "Face the Nation" and McCain appeared on ABC's "This Week."
Many Republicans in Congress say detainees in the War on Terror should not have the same legal protections as those in the military and that Congress should give its imprimatur with little or no change to the Pentagon's military commissions.
McCain agreed that justice afforded to enemy combatants "shouldn't be exactly the same as applied to a member of the military." He added, however, that the Uniform Code of Military Justice is "a good framework.
"Using the guidelines laid down by the Supreme Court, we can make sure that bad guys — and there are bad guys — are not released and those who deserve to be released will be," said McCain, a prisoner of war during the Vietnam conflict.
McCain and Specter added their voices to that of Senate Armed Services Committee chairman John Warner, R-Va., who says he is uncertain Congress should pass legislation to create new military tribunals.
"Everybody says, 'Pass legislation, pass legislation,' but we've got to make certain it's needed, and then do it with careful analysis, to get it right," Warner told The New York Times on Friday.
The Supreme Court said Bush's military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.