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Originally published Friday, September 8, 2006 at 12:00 AM

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Military lawyers dispute tribunal plans

Top Pentagon lawyers took issue Thursday with key aspects of President Bush's plan for a special court system that would limit the legal...

WASHINGTON — Top Pentagon lawyers took issue Thursday with key aspects of President Bush's plan for a special court system that would limit the legal rights of terrorism suspects and exclude them from parts of their own death-penalty trials.

The president's legislation, proposed Wednesday, would authorize the defense secretary to convene military tribunals to prosecute terrorism suspects and omit rights common in military and civil courts, such as the defendant's right to access all evidence and a ban on coerced testimony. To protect classified information, Bush's proposal would bar terrorism detainees from trials in "extraordinary circumstances."

It also would narrow what constitutes coerced admissions — a central issue in prosecuting 14 top terrorist suspects who were subjected to unorthodox interrogation techniques that critics call torture.

The administration proposed the legislation in response to a recent Supreme Court ruling that struck down the administration's earlier attempt to create a special military terrorism court.

At a House Armed Services Committee hearing Thursday, lawyers for all the armed services generally endorsed Bush's push for a separate new military court tailored to deal with the complexities of prosecuting dangerous terrorist suspects while protecting national security secrets.

But the lawyers voiced concern about the fairness of preventing a defendant from hearing and confronting evidence against him.

"I'm 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 without, and convicted without seeing the evidence against him," Brig. Gen. James C. Walker, staff judge advocate of the U.S. Marine Corps, told the panel.

Walker added: "What we do and how we treat these individuals can, in the future, have a direct impact on our servicemen and women overseas."

The administration's plan is likely to provoke a rousing debate when the measure goes before Congress next week. Democrats support an alternative bill being crafted by a trio of Republicans that would guarantee suspects more protections and would be more in line with international law.

GOP moderates — Sens. John Warner, John McCain and Lindsey Graham — have agreed with the Pentagon lawyers that Bush's plan may go too far. Warner, R-Va., chairman of the Armed Services Committee, convened closed-door meetings throughout the day Thursday with other panel members and a senior official from the Justice Department in a bid to generate consensus on an alternative proposal.

During Thursday's hearing, Rep. Duncan Hunter, R-Calif., 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.

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Steven Bradbury, acting chief of the Justice Department's Office of Legal Counsel, contended that sharing the information with a defense lawyer, who has a national-security clearance, would address the problem. But several military lawyers disagreed.

Bradbury said a new system is needed because traditional military-court rules are too rigid for terrorism cases. U.S. troops or intelligence agents can't read newly captured terrorists their Miranda rights, he said, and national-security concerns make it impractical to comply with speedy-trial rules.

The proposal also would allow the use of hearsay, testimony relayed from witnesses who don't have to appear in court and face cross-examination.

Experts in military law said Bush's proposal would raise a host of thorny legal issues, especially surrounding statements made during aggressive interrogation techniques.

Bradbury said military judges should be left to decide on a case-by-case basis whether the detainees were coerced into making incriminating statements.

But Scott Silliman, a Duke University law professor and former Air Force lawyer, said he expects the issue of coerced statements to produce legal problems for prosecutors unless Congress sanctions a system "that says no matter how you get the evidence, it's always going to be admissible, no matter what techniques you use."

He said the Uniform Military Code of Justice governing traditional military courts lets prosecutors show defendants summaries or substitutions for classified information, which is "an easy way to establish a system for prosecuting terrorists that satisfied the mandate of the Supreme Court."

The hearing came a day after Bush acknowledged for the first time that the CIA had secret prisons overseas and defended the practice of tough interrogations to force terrorists to reveal plots to attack the United States and its allies. Bush said 14 detainees would be transferred out of CIA custody to the military's Guantánamo Bay prison in Cuba.

The announcement, however, did not signal an end to the controversial program. State Department legal adviser John Bellinger III told reporters Thursday that if additional members of the al-Qaida terror network were captured, "we reserve the right to have those people questioned by the CIA."

The international Red Cross on Thursday said it planned visits to the 14 terrorists "very soon," while European lawmakers renewed demands to know the locations of the secret prisons.

It was unclear whether the bill could move in Congress in the few weeks left in the congressional session. Senate Majority Leader Bill Frist, R-Tenn., said he would decide on a course of action on Monday. Some Republicans want Frist to send Bush's plan to the Senate floor next week without review by the Senate Armed Services Committee.

Congressional Republican leaders — looking to highlight their party's efforts in fighting terrorism in advance of the November midterm election — are pushing for a vote on new rules for military commissions by the end of September.

McCain said that if legislation is passed soon, trials could start as early as October.

"We want to act in the national interest on this issue," McCain said. "The initial desire is a bipartisan agreement. This is too important to get hung up in party politics."

Compiled from McClatchy Newspapers, The Associated Press, The Washington Post, Newsday and Los Angeles Times.

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