Bush plan for detainees runs into snags

President Bush pushed a hard line on Sept. 6 on trying high profile terror suspects through military tribunals at Guantánamo Bay prison, exhorting Congress to allow evidence to be withheld from a defendant if necessary to protect classified information. Bush had clearly hoped to use the fifth anniversary of the Sept. 11 attacks to shift the focus of November's congressional elections away from the war on Iraq to national security, undoubtedly calculating that with a critical election just nine weeks away, neither angry Democrats nor nervous Republicans would dare deny him the power to detain, interrogate and try suspects his way. But the strategy misfired, with key Senate Republicans and top Pentagon lawyers balking at the White House proposal. White House plan Senior administration officials said the decision to move 14 "high value" detainees to Guantánamo and to set up a new system for putting them on trial emerged from a committee President Bush established in January, six months before a Supreme Court decision forced his hand on some of those issues. The committee, run by J. D. Crouch, the deputy national security adviser, held more than 20 meetings in secret at the White House and a half-dozen higher-level sessions with Bush's national security team, which included Dick Cheney, Condoleezza Rice, Defense Secretary Donald H. Rumsfeld and the director of national intelligence, John Negroponte. Under the new White House plan, the fate of Guantánamo defendants would be decided by a jury of five military officers–12 if the charges carry the death penalty. Senate Republicans and Pentagon officials immediately challenged provisions within the new plan regarding the prosecution of suspects. As well as the use of classified evidence off limits to the defendant, the prosecution could use hearsay and evidence obtained through coercion. "It would be up to the judge to determine, based on an argument by the accused, whether he believed something was torture and needed to be prohibited," John Bellinger, the state department legal adviser, said. For years now, Guantánamo has been a political liability, regarded primarily as a way station for outcasts. By transforming Guantánamo instead into the new home of 14 al-Qaida leaders who rank among the most notorious terror suspects, Bush is apparently challenging Congress to restore to him the authority to put the United States' worst enemies on trial on terms he has defined. Bush announced his proposal as part of a round of speeches on national security aimed at drawing a sharp distinction between the two parties: Democrats as weak on terror, Republicans strong. The administration created a system of tribunals shortly after the terrorist attacks of Sept. 11, 2001, but the Supreme Court struck down that tribunal system in June, saying they violated the Constitution and international law. Congressional reaction Bush's announcement was immediately praised by those who said his policies were necessary to win the war on terror. Senate Majority Leader Bill Frist (R-TN) said he would like to take up the bill on the Senate floor as soon as possible, leaving open the door for a vote on the measure before lawmakers break at the end of the month for election campaigning. However, some GOP moderates are challenging Bush's plan. They include three senators with hefty credentials: Sen. John McCain of Arizona, who spent more than five years as a prisoner of war in North Vietnam; Sen. Lindsey Graham of South Carolina, a former military lawyer who still serves in the Air Force Reserves as a reserve judge; and Sen. John Warner of Virginia, chairman of the Armed Services Committee. They have argued that the system must provide enough fairness guarantees that the nation would feel comfortable having US troops tried under it. This is important, they argue, to repair a national reputation that has been damaged internationally by revelations of abuse at Guantánamo Bay and at Abu Ghraib prison in Iraq, and to set a model for how other countries might try US troops. "It would be unacceptable legally in my opinion to give someone the death penalty in a trial where they never had heard the evidence against them," Graham told the New York Times. "'Trust us, you're guilty, we're going to execute you, but we can't tell you why?' That's not going to pass muster." Graham and McCain of Arizona have produced their own draft legislation on military tribunals which would guarantee suspects the right to see all evidence against them, and bar evidence obtained through torture. A rival set of rules circulated prior to the Bush announcement last 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. Democrats have essentially said they would back Warner, Graham and McCain, leaving the Republicans to lead the fight against the administration, and allowing the Democrats to avoid political fallout from challenging the administration while maintaining their criticism of the administration's handling of the war in Iraq. "I think you're looking for a fight that doesn't exist," Senator Harry Reid of Nevada, the minority leader, told reporters. Top officials balk The day after Bush's announcement, several uniformed military lawyers told the House Armed Services Committee that the White House goes too far in seeking to convict detainees on classified information never shared with the suspects. The Pentagon's top uniformed lawyers took issue with a key part of the White House plan to prosecute terrorism detainees, telling Congress that limiting the suspects' access to evidence could violate treaty obligations. Their testimony to a House committee marked the latest time that military lawyers have publicly challenged Bush administration proposals to keep some evidence–such as classified information–from accused terrorists. In the past, some military officials have expressed concerns that if the US adopts such standards, captured US troops might be treated the same way. Brig, Gen. James C. Walker, the top uniformed lawyer for the Marines, said that no civilized country should deny a defendant the right to see the evidence against him and that the United States "should not be the first." "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 Walker, staff judge advocate to the Marine Corps commandant. Maj. Gen. Scott C. Black, the judge advocate general of the Army, made the same point, and Rear Adm. Bruce E. MacDonald, the judge advocate general of the Navy, said military law provided rules for using classified evidence, whereby a judge could prepare an unclassified version of the evidence to share with the jury and the accused and his lawyer. The lawyers' testimony contrasted with the panel chairman's assertion that the United States must take a harder line when prosecuting terrorists. Rep. Duncan Hunter (R-CA), who heads the House Armed Services Committee, said at the hearing that any military commission established to prosecute terrorists must allow the government to protect intelligence sources. In saying so, the California Republican aligned himself with the White House position. "While we need to provide basic fairness in our prosecutions, we must preserve the ability of our war fighters to operate effectively on the battlefield," Hunter said. Hunter presented the military lawyers with various scenarios in which it might be necessary to withhold evidence from the accused if it would expose classified information. But the service's top lawyers said other alternatives must be explored–or the case dropped. "I believe the accused should see that evidence," said Maj. Gen. Scott Black, the Army's Judge Advocate General. Denying detainees a fundamental right Black and the other lawyers said such an allowance was a fundamental right in other court systems and would meet requirements under the Geneva Conventions. But Hunter suggested that such a requirement could hamper prosecutions. "Some of these acts of complicity in terrorist acts are very small pieces... and you don't have a lot of evidence," he said. During the hearing, Hunter pressed Navy Judge Advocate General Bruce MacDonald as to whether he would bar the use of crucial classified evidence if it otherwise meant sharing it with suspected Sept. 11 mastermind Khalid Sheikh Mohammed. "I can't imagine any military judge believing that an accused has had a full and fair hearing if all the government's evidence that was introduced was all classified and the accused was not able to see any of it," MacDonald replied. The chairman repeated a scenario where the only piece of evidence would expose the identity of a secret agent and asked whether it would make sense to drop the case entirely. "You get to the end of the trail, then yes sir, you do," Black responded.