New Plan Is Proposed for Detainees

A new Bush administration plan for prosecuting accused terrorists held by the U.S. military would grant detainees some additional legal rights, but still permit the use of coerced confessions and prevent the accused from seeing classified evidence being used against them.

Providing the most detailed White House response to a Supreme Court ruling that struck down President Bush’s military commission system, Atty. Gen. Alberto R. Gonzales said Wednesday that a new “Code of Military Commissions” would adhere more closely to the laws for military court-martial proceedings -- a significant concession to congressional critics.

But Sens. John McCain of Arizona and Lindsey Graham of South Carolina, the most vocal Republican critics of the administration’s treatment of detainees, said that the proposal still raised questions.

It was unclear whether the administration will be forced to bow to Graham and McCain on the rules or risk another confrontation with Senate Republicans on the issue of detainee treatment. Last year, the White House was pressured to back down from its objections to a law pushed by McCain that barred torture in the interrogation of terrorism suspects.

Although the two lawmakers remained adamant in their stands at a Senate Armed Services Committee hearing Wednesday, both praised the administration for repeatedly consulting Congress -- a sign that they may be willing to eventually agree to a compromise.

Gonzales said the proposed rules, which remain under discussion within the administration, would likely still allow a military judge to rule on whether evidence gathered through coercion or inhumane treatment of a detainee could be used at trial, rather than banning it outright.

A visibly disturbed McCain objected to the provision. “On this issue of inhumane treatment, I think we’re going to have to have an extended discussion,” said McCain, a former Vietnam prisoner of war and torture survivor.

The admonition followed an exchange in which Gonzales paused for more than 15 seconds when he was asked by McCain whether statements gathered “through illegal, inhumane treatment” should be admissible in the military commissions.

“I can foresee a situation where, depending on the definition, I would say no,” Gonzales answered after the long pause. “But depending on your definition of something as degrading, such as insults or something like that, I would say that information should still come in.”

McCain appeared angered by the answer, telling Gonzales, “I think that if you practice illegal, inhumane treatment and allow that to be admissible in court, that would be a radical departure from any practice that this nation” has used before.

Earlier in the day, at a separate hearing before the Senate Judiciary Committee, the military’s top lawyers expressed concerns similar to McCain’s over the use of coerced confessions.

“I don’t believe that a statement that is obtained under torture, certainly, and under coercive measures, should be admissible,” said the Army’s judge advocate general, Maj. Gen. Scott Black. Lawyers for the Navy, Air Force and Marine Corps concurred with the view.

But a Justice Department official, Steven Bradbury, told the same hearing that although the administration opposed the use of evidence obtained through torture, the question of the admissibility of coerced statements was “more difficult.”

“Allegations can be made about coercion, and courts have always had a very difficult time in defining what that is,” said Bradbury, head of Justice’s Office of Legal Counsel.

He said allowing a military judge to rule on the evidence’s admissibility would provide a “gatekeeper” who could decide whether the allegations had credibility. Some of the military lawyers indicated later that they might be open to such a procedure.

The administration was forced to rework the rules for the trials when the Supreme Court ruled in June that Bush’s military commission system violated U.S. law and portions of the Geneva Convention.

The court invited the administration to go to Capitol Hill if it wanted to enact new rules. But at first, Bush administration lawyers simply urged Congress to pass new laws retaining the old tribunals, in effect making them legal.

Some congressional Republicans, particularly Graham, strenuously objected to the idea and called on the White House to model any new trials on the nation’s Uniform Code of Military Justice, the existing law used to court-martial American military personnel. The Supreme Court cited the military justice code as the law that governs such tribunals.

Following the congressional objections, the administration backed off, and Gonzales sought to show Wednesday that the White House had made significant concessions -- including making use of the military justice code as the “baseline” for its new proposal.

Asked by Graham whether he now believed the new military code-based structure was more appropriate than the tribunals set up by Bush four years ago, Gonzales replied: “I think the product we’re considering now is better.”

But Graham, like McCain, took issue with the proposal’s evidence rules, particularly the provision regarding secret evidence. Gonzales, acknowledging the issue remained one of the most contentious in internal administration debates, said current plans were to allow only an accused terrorist’s military attorney to see evidence deemed confidential.

Those rules are identical to the original tribunals’ and attracted intense scrutiny of the Supreme Court in its decision. Gonzales said the administration was considering ways to show some of the classified evidence to an accused terrorist by either summarizing the information or redacting portions.

Such moves were not good enough, said Graham, an Air Force Reserve colonel and judge advocate. He argued that the rights of the accused to see the evidence against them was central to the U.S. judicial system.

“I’m going to be on the other side of you on classified information,” Graham told Gonzales. “If the only way we can try this terrorist is disclose classified information and we can’t share it with the accused, I would argue don’t do the trial. Just keep him [as a detainee]. Because it could come back to haunt us.”

Rear Adm. Bruce E. MacDonald, the Navy’s judge advocate general, took a similar stand at the Judiciary Committee hearing, saying defendants should be allowed to see all evidence, even classified information.

Asked by Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman, whether there could be a national security risk, MacDonald responded: “Yes, sir there would. And I think that the answer may be that in that instance you would have to give up the prosecution of that particular charge.”