WASHINGTON—Top Pentagon lawyers took issue Thursday with key aspects of President Bush's proposal for a special court system that would limit the legal rights of terrorism suspects and exclude them from parts of their own death-penalty trials.
To protect classified information, Bush's proposal would bar terrorism detainees from trials in "extraordinary circumstances." It also would narrow what constitutes coerced admissions—a central issue in prosecuting 14 top terrorist suspects who were subjected to unorthodox interrogation techniques that critics call torture.
At a House Armed Services Committee hearing, lawyers for all of the armed services generally endorsed Bush's push for a separate new military court tailored to deal with the complexities of prosecuting dangerous terrorist suspects while protecting national security secrets.
But the lawyers voiced concern about the fairness of preventing a defendant from hearing and confronting evidence against him.
"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 without, and convicted without seeing the evidence against him," Brig. Gen. James C. Walker, staff judge advocate of the U.S. Marine Corps, told the panel.
The administration's court plan is likely to provoke a rousing debate when the measure goes before Congress next week. Democrats support an alternative bill being crafted by a trio of Republicans that would guarantee suspects more protections and would be more in line with international law.
During Thursday's hearing, Rep. Duncan Hunter, R-Calif., pressed Navy Judge Advocate General Bruce MacDonald as to whether he would bar the use of crucial classified evidence if it otherwise meant sharing it with suspected Sept. 11 mastermind Khalid Sheikh Mohammed.
"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 all classified and the accused was not able to see any of it," MacDonald replied.
Steven Bradbury, acting chief of the Justice Department's Office of Legal Counsel, contended that sharing the information with a defense lawyer, who has a national security clearance, would address the problem. But several of the military lawyers disagreed.
The administration proposed the legislation in response to a recent Supreme Court ruling that struck down the administration's earlier attempt to create a special military terrorism court.
Bradbury said a new system is needed because traditional military court rules are too rigid for terrorism cases. U.S. troops or intelligence agents can't read newly captured terrorists their Miranda rights, he said, and national security concerns make it impractical to comply with speedy trial rules.
The proposal also would allow the use of hearsay, testimony relayed from witnesses who don't have to appear in court and face cross-examination.
Experts in military law said Bush's proposal would raise a host of thorny legal issues, especially surrounding statements made during aggressive interrogation techniques.
Bradbury said military judges should be left to decide on a case-by-case basis whether the detainees were coerced into making incriminating statements.
But Scott Silliman, a Duke University law professor and former Air Force lawyer, said he expects the issue of coerced statements to produce legal problems for prosecutors unless Congress sanctions a system "that says no matter how you get the evidence, it's always going to be admissible, no matter what techniques you use."
He said the Uniform Military Code of Justice governing traditional military courts lets prosecutors show defendants summaries or substitutions for classified information, which is "an easy way to establish a system for prosecuting terrorists that satisfied the mandate of the Supreme Court."
Edward MacMahon, the chief defense lawyer for convicted Sept. 11 conspirator Zacarias Moussaoui, a case knotted for two years by voluminous amounts of classified information, also questioned why national security secrets couldn't be handled the way they are in traditional military courts.
"You could use classified information in a case and show it to the lawyers, the defendant and the jury and never let" the public see it, he said. "That happens all the time in these kinds of cases."
MacMahon sharply criticized the extent to which the government classified information. He noted that the defense team was barred from disclosing the existence of highly classified statements from suspected Sept. 11 architect Mohammed before the trial, although they'd been published a year earlier in the Sept. 11 commission's reports.
"Sometimes you wonder if you were a defense attorney whether it's national security or just a game?"
It was unclear whether the bill could move in Congress in the few weeks left in the congressional session. Senate Majority Leader Bill Frist, R-Tenn., said he would decide on a course of action on Monday. Some Republicans want Frist to send Bush's plan to the Senate floor next week without review by the Senate Armed Services Committee.
That could lead to a legislative free-for-all unless a group of Republican critics of the White House plan can reach a compromise with the administration. Frist may also decide to offer a competing plan by Armed Services Committee Chairman John Warner, R-Va., and Sens. Lindsey Graham, R-S.C., and John McCain, R-Ariz., which would give terrorism defendants more rights at trial and might better withstand legal scrutiny and international judgment.
"Obviously, there's a lot of strategy here and a lot of politics," Silliman said. "We should rise above that. The whole world is looking at what we do."
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(Margaret Talev contributed to this report.)
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(c) 2006, McClatchy-Tribune Information Services.
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