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Top Military Lawyers Oppose Plan for Special Courts

By R. Jeffrey Smith
Washington Post Staff Writer
Thursday, August 3, 2006

The military's top uniformed lawyers, appearing at a Senate hearing yesterday, criticized key provisions of a proposed new U.S. plan for special military courts, affirming that they did not see eye to eye with the senior Bush administration political appointees who developed the plan and presented it to them last week.

The lawyers' rare, open disagreement with civilian officials at the Pentagon, the Justice Department and the White House came during discussions of proposed new rules for the use of evidence derived from hearsay or coercion and the possible exclusion of defendants from the trials in some circumstances.

The administration has said such juries -- to be established within a new system of military "commissions" tailored for trying war crimes in an age of terrorism -- are the only appropriate forum for bringing to justice members or associates of terrorist groups and those accused of anti-U.S. acts in conjunction with such groups.

The draft legislation debated yesterday would create military commissions to replace the ones struck down in June by the Supreme Court, which ruled that an earlier plan, imposed by the Defense Department without congressional authorization, was unconstitutional. The new proposal seeks to expand the authority of the courts by including defendants who are not members of al-Qaeda or the Taliban and not directly involved in acts of international terrorism.

Some independent experts and human rights groups have criticized the plan because defendants would be denied many protections guaranteed by the civilian and traditional military criminal justice systems.

The proposed legislation has not been formally released because of the administration's inability to persuade the military lawyers to accept it, even after two meetings with Attorney General Alberto R. Gonzales.

The basis for the lawyers' concerns about administration policy, which they first articulated in private memos in 2002 and 2003 for top Defense Department political appointees, is that weak respect for the rights of U.S.-held prisoners eventually could undermine U.S. demands for fair treatment of captured U.S. service personnel.

"The United States should be an example to the world, sir," Maj. Gen. Scott C. Black, judge advocate general of the Army, told Sen. Russell Feingold (D-Wis.) at the Senate Judiciary Committee hearing. "Reciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules for the commissions, and that's the exact reason, sir. The treatment of soldiers who will be captured on future battlefields is of paramount concern."

Sen. Lindsey O. Graham (R-S.C.), a reserve Air Force appellate judge who has repeatedly expressed support for the military lawyers' viewpoint, elicited the affirmations of general dissent when he asked the lawyers if "there are still areas of disagreement" with provisions in the administration's working draft.

Perhaps the sharpest point of disagreement concerned a provision that would allow a military judge to decide that classified evidence could be used at the trials by providing it to a military defense lawyer but not to defendants. Maj. Gen. Jack L. Rives, the Air Force's judge advocate general, said: "It does not comport with my ideas of due process for . . . defense counsel to have information he cannot share with his client." The other lawyers agreed with Rives.

Black also suggested that lawmakers consider eliminating a provision that would establish a new system of appeals for defendants convicted by the military commissions. Under the provision, a special military court -- staffed by military lawyers appointed by the secretary of defense -- would be empowered to review only legal issues, not the validity of a defendant's sentence.

An appeal could then go only to the U.S. Court of Appeals for the District of Columbia Circuit, a conservative bench that has sided twice with the government in detainee cases in the past two years and has been overruled by the Supreme Court.

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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