Bush's Detainee Plan Is Criticized

Steven Bradbury, left, acting assistant attorney general, and Maj. Gen. Scott C. Black, Army judge advocate general, at the House Armed Services Committee.
Steven Bradbury, left, acting assistant attorney general, and Maj. Gen. Scott C. Black, Army judge advocate general, at the House Armed Services Committee. (By Mark Wilson -- Getty Images)
By Charles Babington and R. Jeffrey Smith
Washington Post Staff Writers
Friday, September 8, 2006

President Bush's campaign to sharply limit the courtroom rights of suspected terrorists ran into opposition yesterday from key Republican senators and even top uniformed military lawyers, who said it would violate basic principles of justice.

The military lawyers told a House panel that they particularly object to Bush's bid to allow terrorism suspects to be convicted on secret evidence that is withheld from the defendants, an objection embraced by at least three prominent members of the Senate Armed Services Committee.

One of those is John McCain (R-Ariz.), a former Vietnam War prisoner and a 2008 presidential hopeful who faces a political dilemma. He has won acclaim for standing up to Bush on issues such as humane treatment of detainees, but he also is eager to build conservative support for the GOP primaries. Several colleagues cautioned McCain and the others to stick with Bush on the tribunals question, and House leaders scheduled a vote in two weeks on legislation likely to mirror the White House's proposal.

The day's events suggest that Republicans may spend a good portion of the 109th Congress's final weeks trying to resolve an issue that could factor heavily in the Nov. 7 elections. Earlier divisions among Senate Republicans on issues such as immigration have contributed to legislative stalemates, and party leaders are eager to avoid a similar impasse over detainee trials.

Bush placed the issue near the top of the political agenda Wednesday when he announced that several top al-Qaeda suspects have been moved from secret CIA-run prisons to the U.S. military base at Guantanamo Bay, Cuba. The president suggested that Congress will be to blame if it fails to approve his proposals for prosecuting the detainees under guidelines that critics say are unconstitutional and unfair.

Lawmakers in both parties agree that enemy combatants should be afforded fewer rights than defendants enjoy in civil trials or, for the most part, in military courts-martial. But several uniformed military lawyers told the House Armed Services Committee yesterday that the White House goes too far in seeking to convict detainees on classified information never shared with the suspects.

"I am not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people where an individual can be tried and convicted without seeing the evidence against him," said Brigadier Gen. James C. Walker, staff judge advocate to the Marine Corps commandant.

Bush's high-profile drive for his version of the legislation has been particularly awkward for the three Republican senators who circulated a different bill earlier this week: McCain; Armed Services Committee Chairman John W. Warner (Va.), a former Navy secretary; and Lindsey O. Graham (S.C.), a former Air Force lawyer.

A top GOP Senate aide, who asked that he not be identified because of the sensitive nature of the deliberations, predicted that the trio will find it difficult to hold their ground because they are defending "a bloodless legal principle" while the White House is pushing the politically popular idea of convicting those accused of the 2001 atrocities.

But virtually all Senate Democrats, and at least a few more Republicans, appear sympathetic to Warner, McCain and Graham. Sen. Chuck Hagel (R-Neb.) said in an interview that he takes very seriously the testimony of the uniformed lawyers. He also said Bush was "unwise" to come close to threatening Congress in his Wednesday speech. "We don't work for the president," Hagel said.

Under Bush's proposal, any detainees eventually put forward for trial -- a group that may or may not include all 14 suspects who figured in Wednesday's announcement -- could be convicted or acquitted under conditions that differ sharply from those in standard U.S. criminal trials. The "jury" in a trial by the commissions not involving the death penalty would consist of at least five military officers, and in death penalty cases a dozen officers. A presiding officer, dubbed the military "judge" and possessing legal training or experience, would decide all legal matters but would not vote.

Those eligible for such military trials would be any foreigners deemed "unlawful enemy combatants," a term the administration defines more broadly than Bush did in an executive order shortly after the 2001 terrorist attacks. That category would include not just al-Qaeda and Taliban members, but also anyone who is affiliated with a "force or organization" engaged in hostilities against the United States and its allies, who commits hostile acts for such groups, or -- most broadly -- who "supports hostilities" that aid such groups.

Terrorism would be only one of 27 offenses that could be charged under the Bush plan; the others include conspiracy, hostage-taking, torture, rape and hijacking.

During the trials, prosecutors would be permitted to use classified information to secure convictions; defendants and their lawyers would not be told about such information. Prosecutors could also rely on hearsay, or evidence obtained indirectly, and evidence obtained by coercion if the panel's chief deemed it reliable and directly related to the accusations.

A rival set of rules circulated earlier this week by Warner, McCain and Graham would bar any use in the trials of secret evidence or information obtained from "cruel, inhuman, or degrading treatment" and would admit information from coercive interrogations only if the military judge found it reliable and pertinent. The proposal would allow trials to be closed only to protect information that would damage national security, leaving out any reference to "the public interest" as a reason.

Major human rights groups including Human Rights Watch also criticized the Bush plan's provisions allowing the use of coerced or secret evidence, and complained that the plan could lead to congressional approval for military trials or indefinite detentions of any foreigners accused of supporting terrorist activities.

Meanwhile yesterday, another key component of the GOP security agenda ran into trouble. Both the House and Senate Republican leadership have vowed to pass legislation this month authorizing the National Security Administration's warrantless wiretapping program. But when the Senate Judiciary Committee tried to draft wiretapping legislation, a Democrat who did not reveal his or her identity invoked an obscure Senate rule that halted the panel's efforts after two hours. Committee Chairman Arlen Specter (R-Pa.) vowed to try again next week.

Staff writer Jonathan Weisman contributed to this report.


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