Creating people's geographies
By David S. Cloud and Sherly Gay Stolberg
The New York Times
Wednesday 26 July 2006
Washington – Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.
The bill, which officials said was being circulated within the administration, is not final, but it indicates the direction of the administration’s approach for dealing with a Supreme Court decision that struck down the tribunals established to try terror suspects at Guantánamo Bay, Cuba.
The 32-page bill preserves the idea of using military commissions to prosecute terror suspects and makes modest changes in their procedural rules, including several expanded protections for defendants, many of them drawn from the military’s legal code. But the proposal also sets up a possible confrontation with lawmakers who have called for modeling the trials on the military’s rules for courts-martial, which would allow defendants more rights.
The draft measure describes court-martial procedure as “not practicable in trying enemy combatants” because doing so would “require the government to share classified information” and would exclude “hearsay evidence determined to be probative and reliable.”
President Bush reviewed the bill last week in a meeting with his top advisers, according to a senior White House official, who said the advisers told Mr. Bush that they were comfortable with the bill and were ready to present it to military lawyers. When the legislation is in its final form, the administration will have to ask a member of Congress to introduce it.
The White House would not comment on the specifics of the bill.
“We are in the middle of a process of getting reaction from the various stakeholders, and that is why we circulated a draft,” said Dana Perino, a deputy White House press secretary. “We are working to strike a balance of a fair system of justice that deals with terrorists who don’t recognize the rules of war.”
But one former White House official, granted anonymity to discuss internal deliberations, said the administration was circulating the measure among military lawyers at the Pentagon with the intention of winning over Republican senators who have led the calls for using court-martial procedures, including Senator Lindsey Graham of South Carolina, a former military lawyer.
A copy of the draft legislation was provided to The New York Times by an official at an agency that is reviewing it. The copy was labeled “for discussion purposes only, deliberative draft, close hold,” and the official who shared it did so on condition of anonymity. The official did not express an opinion about its contents.
Mr. Graham reviewed the draft briefly last week in a meeting with administration officials but was not given a copy of it. He described the measure as “a good start,” but added, “I have some concerns.” He would not be specific, saying he wanted to withhold judgment until hearing the views of military lawyers.
Mr. Graham praised the administration for engaging in “a collaborative process” and said the measure incorporated some of his suggestions, including the requirement that a military judge be detailed to each commission.
A senior Congressional aide said Senator John McCain, Republican of Arizona, by contrast, is believed to be more adamant that using the existing commissions with modest changes will not suffice, largely because of the danger that American troops could face similar treatment if captured abroad.
Though House Republicans are considered more supportive of the administration’s plan, it could have difficulty passing the Senate without additional changes, said Eugene R. Fidell, the president of the National Institute of Military Justice.
“I believe the sentiment on the Hill is for a much more nuanced approach that tracks much more closely with the procedures used for general courts-martial,” Mr. Fidell said. He called the administration plan “a missed opportunity.”
Rather than requiring a speedy trial for enemy combatants, the draft proposal says they “may be tried and punished at any time without limitations.” Defendants could be held until hostilities end, even if found not guilty by a commission.
Nor does the bill adhere to the military’s rules for the admissibility of evidence and witnesses because “the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers,” the proposal says.
The draft bill specifies that no matter how it is gathered, evidence “shall be admissible if the military judge” determines it has “probative value.” Hearsay statements, meaning something a witness has heard but does not know to be true, would be allowed “at the discretion of the judge unless the circumstances render it unreliable or lacking in probative value.”
The bill would also bar “statements obtained by the use of torture” from being introduced as evidence, but evidence obtained during interrogations where coercion was used would be admissible unless a military judge found it “unreliable.”
The provision allowing defendants to be excluded from a trial to prevent them from hearing classified evidence against them is likely to be among the more controversial aspects of the proposal. The bill notes that “members of Al Qaeda cannot be trusted with our nation’s secrets.” But the bill specifies that the “exclusion of the accused shall be no broader than necessary” and requires that a declassified summary of the information be given to defendants.
One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. The draft measure says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights,” meaning that in the future, terror suspects like Salim Ahmed Hamdan, a Yemeni held at Guantánamo whose case resulted in the Supreme Court ruling, cannot file lawsuits saying their Geneva Convention rights were violated.
Common Article 3 prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment” of detainees. Administration lawyers have warned that the provision could lead to war crimes charges against American troops who use overly harsh interrogation tactics. The draft bill attempts to remove that concern by saying that a law signed last year by Mr. Bush on the treatment of detainees would “fully satisfy” the article’s requirement for humane treatment.
Officials said the bill was drafted by Steven G. Bradbury, acting assistant attorney general. On Tuesday, Attorney General Alberto R. Gonzales met with Senator John W. Warner of Virginia, the Republican chairman of the Armed Services Committee, about the administration’s proposal. Mr. Gonzalez later went to the Pentagon to brief senior civilian and military officials, including the judge advocates general from each of the services, a Pentagon official said.
Getting the support of uniformed Pentagon lawyers could prove critical to the fate of the measure. At a hearing before the Senate Armed Services Committee earlier this month, each of the judge advocates general said that, like some lawmakers, they preferred a system for trying detainees that relied on the Uniform Code of Military Justice, which governs court-martial proceedings.
That was at odds with testimony from civilian lawyers from the Departments of Defense and Justice, who had said that they believed the military code was inappropriate for prosecuting terror suspects and recommended that Congress retain the administration’s military commission system. Pentagon officials said they were still open to suggested changes from the military lawyers.
Eric Ruff, the Pentagon spokesman, said Defense Secretary Donald H. Rumsfeld “is asking that draft legislation be reviewed by everyone from a legal as well as policy perspective, and he would like them to provide feedback on what the effects might be on the ability of our military to carry out its various missions.”
Kate Zernike contributed reporting for this article.