Key GOP lawmakers balk at Bush detainee plan
Key GOP lawmakers balk at Bush detainee plan
Even top uniformed military lawyers said it would
violate basic principles of justice.
By Charles Babington, R. Jeffrey Smith
THE WASHINGTON POST
Friday, September 08, 2006
WASHINGTON President Bush's campaign to sharply
limit the courtroom rights of suspected terrorists ran
into opposition Thursday from key Republican senators
and even top uniformed military lawyers, who said it
would violate basic principles of justice.
The military lawyers told a U.S. 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
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 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.
House leaders scheduled a vote in two weeks on
legislation likely to mirror the White House's
The day's events suggest that Republicans may spend a
good portion of the 109th Congress' 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
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 Guantánamo 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 lawyers told the
House Armed Services Committee Thursday that the White
House goes too far in seeking to convict detainees on
classified information never shared with 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 Brig. Gen. James 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 Warner, R-Va.; and Lindsey
Graham, R-S.C., a former Air Force attorney.
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 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 Bush's
Wednesday announcement could be convicted or
acquitted under conditions that differ sharply from
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. 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 anyone 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
During the trials, prosecutors would be permitted to
use classified information to secure convictions,
which the defendants and their lawyers would not be
told about. The prosecutors could also rely on
hearsay, or evidence obtained indirectly, and evidence
obtained by coercion if the panel's chief deems it
reliable and directly related to the accusations.
A rival set of rules circulated 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 admit information from
coercive interrogations only if the military judge
finds it reliable and pertinent. It 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.