Top Military Lawyers Dislike Tribunal Plan

Bush's proposal to allow withholding evidence from suspects would preclude 'a full and fair hearing,' they say. GOP leaders work on a deal.

By Richard Simon
Times Staff Writer

September 8, 2006

WASHINGTON — The Bush administration's proposal for bringing suspected terrorists to trial drew criticism from top military lawyers Thursday as congressional Republicans worked to bridge differences within their own ranks over the proposal.

A group of influential GOP senators who have been critical of the administration's proposal worked through the day to try to come up with a compromise. Republican leaders — looking to highlight their party's efforts in fighting terrorism in advance of the November midterm elections — are pushing for a vote on new rules for military commissions by the end of the month.

President Bush exhorted Congress on Wednesday to adopt his plan for holding trials for terrorism suspects, including the most notorious prisoners in U.S. custody. The Supreme Court in June struck down the administration's previous tribunal system.

"I think we're making some progress," Senate Armed Services Committee Chairman John W. Warner (R-Va.) said after one round of closed-door meetings. Sen. Lindsey Graham (R-S.C.), a key negotiator who at one point rushed down a hallway in a Senate office building accompanied by administration officials, said only that he was optimistic an agreement could be reached.

The flurry of activity occurred as Pentagon lawyers took issue with a key provision of the administration's proposal: permitting judges to deny suspects the right to see classified evidence used against them.

"I can't imagine any military judge believing that an accused has had a full and fair hearing if all the government's evidence that was introduced was classified and the accused was not able to see any of it," the Navy's judge advocate general, Rear Adm. Bruce E. MacDonald, told the House Armed Services Committee.

Brig. Gen. James C. Walker, U.S. Marine Corps staff judge advocate, added: "I'm 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. And I don't think that the United States needs to become the first in that scenario."

Supporters of the proposal said they worried that allowing terrorism suspects to see classified information could threaten national security.

"In the midst of the current conflict, we cannot share with captured terrorists the highly sensitive intelligence relevant to some military commission prosecutions," Steven G. Bradbury, acting assistant attorney general, told the committee.

Sen. John McCain (R-Ariz.), who also has expressed concerns about the administration's proposal, said that if legislation was passed soon, trials could start as early as October.

"I do think Americans would feel better if we could start these trials," he said in an interview.

McCain said Republicans were negotiating in an effort to draft a bill that would win support among Democrats.

"We want to act in the national interest on this issue," McCain said. "The initial desire is a bipartisan agreement. This is too important to get hung up in party politics."

Even as McCain, Graham and Warner attempted to work out their differences with the White House, a number of Republicans were ready to move forward with a vote.

House GOP leaders — whose rank and file appear to strongly support the president's proposal — said they intended to bring the new rules up for a vote a week after the fifth anniversary of the Sept. 11 attacks.

"Khalid Shaikh Mohammed, his conspirators and other terrorists should not be afforded rights from a judicial system of a country they seek to destroy," Majority Leader John A. Boehner of Ohio and Armed Services Committee Chairman Duncan Hunter of El Cajon said in a statement.

Senate Majority Leader Bill Frist (R-Tenn.) also has said he wants the Senate to vote on the new rules before the end of the month.

"It's important to the safety and security of the American people that we address this issue … before we depart," Frist said in an interview.

richard.simon@latimes.com

Times staff writers Maura Reynolds and Janet Hook contributed to this report.