Messages Conflict on Detainee Trials

Key senators said Thursday that in behind-the-scenes talks, the White House had agreed that existing U.S. military law could form an acceptable basis for a new system of justice for war detainees. Earlier in the week, civilian administration lawyers had argued that it could not work.

The differing positions reflect divisions within the Bush administration over the treatment of the detainees and the rights of those accused of war crimes, an issue made urgent by the Supreme Court ruling last month striking down much of the system put in place by the president.

As Congress worked to develop a new system, it took testimony this week from various parties.

On one side, the administration’s civilian lawyers in the departments of Justice and Defense testified that Congress should retain key features of the military commission system implemented by Bush after the Sept. 11 attacks.

On another side, the administration’s uniformed military lawyers said they preferred a system more closely resembling existing military law -- in particular the Uniform Code of Military Justice, which governs court-martial proceedings for U.S. service personnel.

For the most part, House Republicans appeared to back the more hard-line approach favored by the administration’s civilian lawyers; Senate Republicans tended to side with the uniformed lawyers, who have opposed the military commission system since it was designed four years ago.

At a Senate Armed Services Committee hearing Thursday, Sens. John McCain (R-Ariz.) and John W. Warner (R-Va.) said White House national security advisor Stephen J. Hadley had told them in meetings this week that he agreed with their position that the Uniform Code of Military Justice should form the basis of new legislation, McCain said.

“At that time, I was under the impression that that was the administration’s position,” McCain said. “I hope that it hasn’t changed.”

However, lawyers from the departments of Defense and Justice had testified earlier that they believed the military code was inappropriate for prosecuting suspected terrorists and recommended that Congress retain the administration’s military commission system.

“I’m somewhat perplexed at some of the testimony that was offered both to the Senate Judiciary and the House Armed Services Committee,” said Warner, chairman of the Armed Services panel. “But, in due course, we’ll work that out.”

White House officials offered little clarity Thursday, saying that they preferred a tough approach but that “no doors are closed.”

“Terrorists don’t deserve the same rights as the troops in uniform,” White House Deputy Press Secretary Dana Perino said while in Germany with President Bush.

Warner said he expected the White House to work to resolve the apparent divisions within the administration when the president returned from the annual meeting of the Group of 8 leading industrial countries this weekend in Russia.

At the Senate hearing Thursday, six top military lawyers -- including the judge advocates general of the Army, Navy and Air Force along with the staff judge advocate of the Marine Corps and two retired JAGs -- said Congress should not rubber-stamp the tribunal system designed by the administration.

Instead, they expressed support for a new system combining elements of the Uniform Code of Military Justice, international law and the administration plan.

“We have a military commissions procedure that was established that attempted to provide fundamental rights. We have the UCMJ, which we know is the gold standard, that achieve the protection of fundamental rights,” said Brig. Gen. Kevin Sandkuhler, a staff judge advocate for the Marines. “My view is that we are looking for a leveling between the two.”

Some Republicans on the Senate panel complained that using the military justice code as a “baseline” was inappropriate because it would grant detainees at Guantanamo Bay, Cuba, special privileges.

The military lawyers agreed that detainees should not be afforded the military equivalent of Miranda rights and said that evidence collected on the battlefield need not follow the same chain-of-custody rules used in criminal proceedings. They also said that secondhand or “hearsay” evidence should be deemed admissible, at least in part.

At least one of the military lawyers said that arguments over the starting point for a new tribunal system missed the point.

“I think it’s not as important where you start as where you end up,” said Rear Adm. James E. McPherson, judge advocate general of the Navy. “I think where we start has become a polarizing theme.”

Sen. Lindsey Graham (R-S.C.), an Air Force Reserve colonel and judge advocate, appealed for support for an approach using the U.S. military justice code.

“I think we’d be well served starting with what we know works, and it has been in place for a long time -- the Uniform Code of Military Justice,” Graham said.

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(BEGIN TEXT OF INFOBOX)

Defendant rights

The Supreme Court, in ruling that Guantanamo Bay detainees cannot be tried by military commissions, said the suspected terrorists could be subject to the rules used in military courts-martial. Congress is working on a new system that might contain features of both. Here is a comparison of defendant rights in the two systems:

Presumption of innocence

Courts-martial: Presumed innocent.

Military commissions: Presumed innocent.

Right to remain silent

Courts-martial: Members of the military cannot be compelled to confess; coerced confessions are not admissible.

Military commissions: Not provided; a rule against using coerced statements was adopted in March.

Freedom from unreasonable search and seizure

Courts-martial: Rules prohibit the use of evidence obtained through unlawful search or seizure.

Military commissions: Not provided. Private conversations between detainees and lawyers cannot be used.

Jury

Courts-martial: Military courts provide for impartial juries. Defendants can challenge jury members.

Military commissions: No jury. Trial is by a commission picked by the military. Detainees have challenged panel members.

Presence at trial

Courts-martial: The presence of the accused is required, unless the accused waives the right or engages in conduct justifying removal.

Military commissions: The accused are to be present to “the extent consistent with the need to protect classified information” and national security.

Right to counsel

Courts-martial: Defendants have a right to military counsel at government expense and can hire a civilian lawyer.

Military commissions: Defendants are provided a military lawyer. They may hire a civilian attorney but the lawyer is not guaranteed access to classified evidence.

Right of appeal

Courts-martial: Defendants may pursue military appeals. After military appeals, they may go to civilian court.

Military commissions: No right to appeal sentences shorter than 10 years. A review panel makes recommendations to the Defense secretary.

Sources: Department of Defense, Congressional Research Service

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Times staff writer James Gerstenzang in Rostock, Germany, contributed to this report.