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Top Military Lawyers Oppose Plan for Special Courts

Black said that keeping the existing appellate process for military courts-martial, which allows for an earlier review of a defendant's sentence, is "certainly worth considering," adding, "We have extraordinarily competent and talented judges at our appellate levels throughout the services." Navy Rear Adm. Bruce McDonald said the existing process could be kept, although Rives and Marine Corps Brig. Gen. Kevin M. Sandkuhler indicated that they favor the proposed method.

Black also took issue with a provision in the draft that would allow the use of evidence collected during coercive interrogations. "Sir, I don't believe that a statement that is obtained under coercive -- under torture, certainly, and under coercive measures should be admissible," he told Judiciary Committee Chairman Arlen Specter (R-Pa.).

McDonald, Rives and Sandkuhler each separately said they agreed. But they said later that they could accept a procedure in which a presiding military judge would decide whether coercion occurred.

The administration's plan, in contrast, is to let the judge decide whether to admit evidence obtained by coercion by considering whether it is reliable and necessary to prove a point. Gonzales embraced this more flexible approach at an Armed Services Committee hearing on the same topic yesterday when Sen. John McCain (R-Ariz.) asked whether statements obtained through "illegal, inhumane treatment should be admissible."

Gonzales said: "The concern that I would have about such a prohibition is what does it mean [and] how you defined it. I think if we could all reach agreement about the definition of cruel, inhumane and degrading treatment, then perhaps I could give you an answer. . . . Depending on your definition of something as degrading, such as insults, I would say that information should still come in."

McCain called this "a radical departure" from past U.S. practice.

Gonzales also confirmed a report last week in The Washington Post that the administration plans to include language in the legislation designed to protect service personnel and civilians from domestic war-crimes prosecutions for any violations of the international laws of war that are committed under administration policies that have been withdrawn or ruled illegal.

"It seems to us it is appropriate for Congress to consider whether or not to provide additional protections for those who've relied in good faith upon decisions made by their superiors," Gonzales said.


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