Senators Gain Momentum to Change Military Tribunal System

By Jonathan Weisman
Washington Post Staff Writer
Saturday, July 15, 2006

With the Bush administration divided and no clear voice emerging in the House, a bipartisan group of senators is gaining momentum to push through legislation that would create military tribunals based on standard military law and the rules of courts-martial, senators and House members said yesterday.

Several days of hearings on military tribunals revealed deep rifts in the administration -- between some White House officials and Justice and Defense Department lawyers, and between uniformed military personnel and civilian Pentagon appointees. Senators are ready to use those divisions to their advantage, marshaling their own authority and the clout of top military lawyers to make significant changes to a tribunal system created by President Bush following the Sept. 11, 2001, attacks that was rejected last month by the Supreme Court.

Sen. John McCain (R-Ariz.), who used his standing as a former tortured prisoner of war to pass legislation last year banning torture at U.S. detention facilities, will reprise that role as the face of the Senate's tribunal legislation. He in turn will defer to Sen. Lindsey O. Graham (R-S.C.), the Senate's only active military lawyer, on the substance of the bill.

Backing them will be Sen. John W. Warner (R-Va.), chairman of the Armed Services Committee, Sen. Carl M. Levin (Mich.), the committee's ranking Democrat, and Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee.

"The idea of reauthorizing military commissions as written would be a mistake," said Graham, who helped organize Senate Armed Services Committee hearings Thursday that featured a parade of military judge advocates general counseling major changes to the tribunals. "I am very optimistic that we will reauthorize military commissions that are set up using [standard military law] as the model, but with substantial differences because the war on terror demands substantial differences."

Rep. Loretta Sanchez (D-Calif.), a House Armed Services Committee member, has drafted tribunal legislation based on President Bush's original commissions and sees tribunals based on courts-martial as impractical and possibly dangerous. But she saw little chance of that position prevailing.

"The personalities are significantly stronger over there, but that doesn't mean they're right," she said of the Senate. "We could have a long, drawn-out battle over this in September, but in the end, more people will give deference to McCain and Graham because they are the powerhouses on this issue."

After six years of White House dominance on the policies governing the war on terrorism, senators are suddenly feeling confident that they are gaining at least a say in such matters. On Thursday, Specter won a promise from the White House that Bush would back his legislation placing the administration's warrantless domestic telephone and e-mail surveillance program under a secret court review process. Specter could move that legislation through his committee as early as Thursday.

"I don't want to talk about it in terms of [White House] concessions, because that suggests winners and losers," Specter said yesterday. "It's a big gain for constitutional government and a big gain for the country."

At issue in the tribunals fight is a legislative response to the Supreme Court's June 29 ruling that Bush violated the Constitution when he bypassed Congress to establish military commissions to try suspected terrorists. Senators, backed by some of the Pentagon's most senior lawyers, say Congress should use the Uniform Code of Military Justice, or UCMJ, to reformulate those commissions. Military lawyers went public this week with long-standing frustrations that their views had been dismissed when the administration first formulated the rules of the commissions.

"Any legislation on military commissions needs to reflect the practice of military law as it has evolved over the last 60 years . . . and as the uniformed lawyers advocated in 2001 and early 2002," said retired Maj. Gen. Thomas J. Romig, a former judge advocate general of the Army. "Look at the structure, the processes, and the procedures that are in the manual for courts-martial, and the Uniform Code of Military Justice."

Maj. Gen. Jack L. Rives, the judge advocate general of the Air Force, agreed, "the Uniform Code of Military Justice does provide a great starting point."

Graham, McCain and Warner said national security adviser Stephen J. Hadley had assured them he would go along with that.

But senior lawyers at the Justice and Defense departments say Congress need only make minor changes to the president's tribunals before ratifying them in legislative form, a position echoed by House Republicans and now by the White House.

"We think we've gotten a lot of support this week for the proposition that a straight UCMJ approach is incompatible with the war on terror, meaning that terrorists don't deserve the same rights as our troops," White House spokeswoman Dana M. Perino said.

Senators say they would like to avoid a repeat of last year's public showdown over the torture ban, when McCain and an overwhelming Senate majority stood against key House Republicans, Vice President Cheney and Defense Secretary Donald H. Rumsfeld, all of whom said the McCain language was not necessary and would harm intelligence gathering. Ultimately, Bush withdrew a veto threat and signed the legislation.

But theatrical presentations by administration officials who raised the specter of soldiers reading Miranda rights or having to fill out paper work on the battlefield left some Republican aides fearing a showdown was inevitable.

"It's possible to get something done and ready for a vote in early September," said a senior Republican Senate aide working on the issue, "but not if we're going to have to go through this political theater first."

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