Bush Lawyers Decry Plan for War Crimes Courts

Times Staff Writer

Bush administration lawyers Wednesday rejected congressional suggestions that suspected Al Qaeda and Taliban war criminals be prosecuted in the U.S. military justice system, saying military courts provided protections for defendants that were unwarranted in the war on terrorism.

The lawyers said the government must be able to use evidence and testimony gathered through coercion and hearsay and did not want to provide captives with lawyers before interrogating them for intelligence purposes.

Key lawmakers have said that last month’s landmark Supreme Court ruling on military tribunals directs them to use the Uniform Code of Military Justice as the legal framework for new war crimes courts. The lawmakers said they could amend the code to address specific administration concerns.


But lawyers from the Defense and Justice departments told members of the House Armed Services Committee that such a plan was unworkable and urged lawmakers to retain the system put in place by President Bush four years ago, despite the Supreme Court’s finding that it violated U.S. law and the Geneva Convention.

Daniel J. Dell’Orto, the Pentagon’s principal deputy general counsel, said hundreds of changes to military laws would be required if Congress insisted on using the military justice code as the basis for new war crimes courts. “That is a gutting of the manual for courts-martial and the Uniform Code of Military Justice,” Dell’Orto said.

The lawyers’ insistence that Congress re-adopt the military commission system is the latest sign that -- despite the Supreme Court ruling and the administration’s acknowledgment Tuesday that the Geneva Convention must be applied to all detainees held by the U.S. military -- the White House is likely to remain aggressive in asserting its authority over detainee policy.

Indeed, the administration has refused to say publicly whether its decision to apply the Geneva Convention to military detainees would also apply to those believed to be held by the CIA in undisclosed locations.

An order issued Tuesday by Deputy Defense Secretary Gordon R. England applied Geneva Convention protections only to detainees held by the military, which include 450 at Guantanamo Bay, Cuba, and about 500 at Bagram Air Base in Afghanistan.

The Supreme Court ruling suggested that a Geneva provision dealing with combatants who are not formally part of a nation applied to Al Qaeda suspects. Legal experts said that part of the ruling extended to the CIA’s “ghost detainees,” who may include Sept. 11 mastermind Khalid Shaikh Mohammed.


White House officials would not answer questions about whether the Geneva Convention provision, known as Common Article 3, applied to CIA detainees. The CIA also declined to comment on the topic. Human rights groups estimate there are more than two dozen such captives.

Hina Shamsi, a lawyer with Human Rights First, said such coverage could allow the CIA detainees to have visits from the Red Cross and communicate with family members -- rights granted to Guantanamo detainees.

In arguing that Congress should adopt legislation implementing the president’s war crimes rules, administration lawyers for the first time detailed their objections to proposals for a new system based on the U.S. military justice code. Most of their objections focused on rules of evidence, which officials said would prevent them from presenting testimony gathered from military interrogations.

Dell’Orto said under military rules, prosecutors would not be allowed to introduce hearsay -- testimony from someone who knows about an incident secondhand -- into a war crimes trial. Such a ban would force prosecutors to call soldiers back from the front line or allow defendants to seek direct testimony from Al Qaeda leaders.

More controversially, Steven G. Bradbury, head of the Justice Department’s office of legal counsel, said the administration also wanted to maintain flexibility in introducing evidence coerced from detainees.

“We do not use as evidence in military commissions evidence that is determined to have been obtained through torture,” Bradbury said. “But when you talk about coercion and statements obtained through coercive questioning, there’s obviously a spectrum, a gradation of what some might consider pressuring or coercion short of torture, and I don’t think you can make an absolute rule.”


In a Senate Judiciary Committee hearing Tuesday, Republicans warned they would not rubber-stamp administration policies. On Wednesday, House Republicans seemed more amenable to administration suggestions, saying they did not believe Al Qaeda suspects should be granted rights given to other defendants in military court-martials.

Rep. Duncan Hunter (R-El Cajon), chairman of the House Armed Services Committee, appeared to back the administration’s stance. In a time of war, it may not be practical to apply “the same rules of evidence that we do in civilian trials or court-martials,” Hunter said.

But Democrats called such evidentiary concerns “red herrings,” insisting that no member of Congress had suggested imposing police-like duties on soldiers in battle, such as reading detainees their Miranda rights.

“Two or three of you, in both your written statement and your statements here today, talk about the problem of a chain of evidence in a door-to-door search or Miranda warnings,” said Rep. Vic Snyder (D-Ark). “I mean, who the hell is saying that? Nobody is saying that.”


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