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GOP Senators Differ With President on Military Trials

Senate Armed Services Committee Chairman John W. Warner, left, and Sen. John McCain think that blocking detainees' access to evidence would violate standards for due process.
Senate Armed Services Committee Chairman John W. Warner, left, and Sen. John McCain think that blocking detainees' access to evidence would violate standards for due process. (By Mark Wilson -- Getty Images)

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By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, September 6, 2006

Key Republican senators have drafted a legislative plan for special military trials of suspected terrorists that diverges from a recent Bush administration plan by granting defendants rights that the White House has sought to proscribe, government officials said yesterday.

Under the lawmakers' plan, any future military trials of the nearly 200 eligible U.S. detainees held in military prisons at Guantanamo Bay, Cuba, and other locations around the world would be governed by a law that explicitly ensures that defendants have the right to know the evidence against them.

The Bush administration has long maintained that no law is needed to establish a system of military commissions, as they are known, for trials of terrorism suspects, but the Supreme Court ruled otherwise in June. The administration still contends that military prosecutors should be able to present sensitive evidence to military judges but withhold it from defendants.

But the sponsors of the legislation -- Senate Armed Services Committee Chairman John W. Warner (R-Va.), Sen. John McCain (R-Ariz.) and Sen. Lindsey O. Graham (R-S.C.) -- disagreed. They have embraced the view of senior uniformed military lawyers that blocking defendants' access to evidence would violate long-standing due-process standards and set a dangerous precedent for trials of captured U.S. military personnel.

The White House has tried to stymie what it views as an act of party rebellion on the matter, dispatching acting Assistant Attorney General Steven G. Bradbury, the head of the Justice Department's Office of Legal Counsel, to complain about the draft on Capitol Hill last week. White House national security adviser Stephen J. Hadley has also tried to persuade lawmakers to withdraw or modify their measure.

But Senate sources said that Majority Leader Bill Frist (R-Tenn.) is considering a plan to bring the legislation to the floor next week under a special rule, bypassing the normal requirement for prior approval by a committee. The Senate is rushing to complete essential pre-election work by the end of this month.

The three Republicans have circulated their draft to Republican and Democratic colleagues on the Armed Services Committee, and two congressional sources said yesterday that there is significant consensus on its major provisions. The language of some parts is still being negotiated, they said, but the section on defendants' access to the evidence against them is settled.

White House spokeswoman Dana Perino said she understood that Senate lawmakers were "working off" the administration's draft and were in close consultation with White House officials.

Administration appointees have previously said the difficulty of obtaining and protecting information on terrorism may require that some evidence be presented to military tribunals secretly, with defendants denied the chance to know about it and excluded from trials when it is discussed.

But critics have said that defendants must have the right to challenge the validity of any evidence presented at trial, and that classified information can either be declassified or summarized. As in military court-martial proceedings, "any evidence presented to the jury would be available to the defendant" under the Senate proposal, one source said. Juries would consist of military officers.

The final version of the administration's legislative draft is slated to be released today after a speech on the subject by President Bush. It is expected to retain provisions that allow military prosecutors to introduce evidence collected during coercive interrogations that fall short of torture and evidence obtained through hearsay.

The Senate lawmakers' plan contains more restrictive language on these points than the administration favors and hews closer to existing military procedures, officials said. It also jettisons an administration proposal to create a new military appellate court to review trial decisions, relying instead on an existing military court of appeals.

Pentagon officials also plan to release the Army's new field manual on interrogations as soon as today. The document, which has been in the works for many months, is expected to redefine the parameters under which all U.S. military interrogators operate.

Military and congressional officials said yesterday that the manual will specify the techniques interrogators may use when questioning people captured on the battlefield and clarify previously vague administration instructions on the treatment of detainees. The old manual has been under revision since the abuse at the Abu Ghraib prison in Iraq surfaced in 2004.

The new manual will apply to all military personnel under a law passed last year that made the field manual the official guidance for all Defense Department employees. Officials said yesterday that, in a concession to key Senate lawmakers, there will be no classified annex to the document, meaning that all U.S. interrogation tactics and their applications will be in the public record.

Lt. Gen. John F. Kimmons, the Army's deputy chief of staff for intelligence, briefed senior members of the Senate Armed Services Committee yesterday afternoon on the inches-thick manual. Sen. Carl M. Levin (D-Mich.), the committee's ranking member, said that at first glance, it appears that the manual deals with problems identified over the past two years.

"There appear to be significant changes in the right direction," Levin said yesterday after a private briefing with Warner. "But I will study it overnight."

Staff writer Josh White contributed to this report.


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