By ANNE PLUMMER FLAHERTY
The Bush administration wants a new system for trying terror suspects to let prosecutors withhold classified evidence from the accused, Attorney General Alberto Gonzales said Wednesday, holding to a hard line on detainee policy despite concerns by senators and military lawyers.
"We must not share with captured terrorists the highly sensitive intelligence that may be relevant to military commission proceedings," Gonzales told the Senate Armed Services Committee.
Gonzales said detainee legislation also should permit hearsay and coerced testimony, if deemed "reliable" by a judge. These approaches are not permitted under the Uniform Code of Military Justice, or UCMJ, which is used for military courts-martial.
The administration’s plans have sounded alarms in the military’s legal corps and on Capitol Hill, who say the UCMJ is a tried-and-true body of law that is well-regarded around the world.
Testifying before the Senate Judiciary Committee Wednesday morning, prior to Gonzales’ remarks, the services’ judge advocates general _ their top uniformed legal officers _ said they would not support passing a law that would bar defendants from accessing evidence, which is considered a fundamental right in civilian and military courts.
GOP senators who have been negotiating a final legislative proposal with the administration said they, too, were unconvinced the administration’s position was sound.
"We haven’t reached a final decision on how we’re going to handle it," but it is important to have "this statute be able to survive any subsequent federal court review process," said Sen. John W. Warner, chairman of the Senate Armed Services Committee.
Sen. Lindsey Graham said he opposes withholding evidence because of the dangerous precedent it sets.
"If the only way we can try this terrorist is to disclose classified information, and we can’t share it with the accused, I would argue, don’t do the trial. Just keep them. Because it could come back to haunt us," said Graham, R-S.C.
Gonzales played down the effect of denying classified evidence to terror suspects, telling lawmakers, "I think it would be an extraordinary case where classified information would be used and would not be provided to the accused."
Gonzales’ testimony provided the latest details on how the administration would retool the tribunals that President Bush established in 2001 for trying terrorism detainees, a system that the Supreme Court rejected in June. The Supreme Court ruled the tribunal system was not authorized by Congress and violated international treaty obligations on detainee treatment.
Bush officials have yet to unveil their legislative proposal, which is still being examined by military lawyers.
Trial procedures, sentencing and appellate review rules would "largely track" with courts-martial rules, Gonzales said. "At the same time, the military commission procedures should be different from the procedures used to try our own service members," he said.
Warner, R-Va., said he may convene hearings during the August congressional recess so that the legislation can be finished by September. Senate Majority Leader Bill Frist, R-Tenn., said Wednesday he expects a detainee bill to reach the floor in September.
Judiciary Committee Chairman Arlen Specter, R-Pa., said he would oppose any legislation that would authorize the defense secretary, instead of Congress, to determine what crimes may be tried by military tribunals.
Steven Bradbury, the top legal adviser at the Justice Department, confirmed the administration was considering granting the defense secretary such authority but added: "I would not say that the secretary of defense would be creating new crimes from whole cloth, but rather … recognizing offenses that exist under the laws of war and providing for their prosecution in the military process."
At the Judiciary panel hearing, Specter said handing over control to the administration would invite another challenge by the Supreme Court. "Is there any reason we ought to follow that course that would be risky at best?" Specter asked.
"That’s certainly an avenue that’s open to Congress and one you might judge as appropriate," Bradbury replied.
Military lawyers testifying before the panel agreed with Specter that Congress should make clear who should be tried by military commission. They also said coerced statements should not be admissible in court.
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