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Lindsey Graham: accused terrorists must see evidence against them

SENECA, S.C.—Sen. Lindsey Graham said Friday that he's confident the Senate will reject President Bush's plan to try accused terrorists without letting them see classified evidence against them.

Graham, a military lawyer who's a colonel in the Air Force Reserve, read the White House bill late Thursday evening on a plane from Washington to Greenville, S.C. He pored through the 86-page document until, on page 34, he reached a clause that would prohibit defense lawyers from sharing classified information with defendants they represent. He marked it with a red pen.

"That's the killer," the South Carolina Republican said. "I fell over when I read it."

Graham said he supports 90 percent of the bill, which Bush sent to Congress on Wednesday. But, he said, "I don't feel good about telling someone—no matter who they are—`We're going to execute you next week, but I'm sorry, we can't tell you why.'"

"It's a bridge too far, and it's not necessary," Graham said in an extensive interview with McClatchy Newspapers in his hometown of Seneca. "It will result in putting the (military) commissions in legal jeopardy and eroding our standing in the world community."

Graham, 51, said that every general and admiral at the top of the country's military justice system agrees that classified information can be shared with accused terrorists without jeopardizing national security.

Maj. Gen. Scott Black, the judge advocate general of the Army, told the House Armed Services Committee on Thursday: "I believe the accused should see that evidence."

Senate Majority Leader Bill Frist, R-Tenn., has given the Armed Services Committee until Tuesday to produce a bill, Graham said. The panel's chairman, Sen. John Warner of Virginia, and Sen. John McCain share Graham's view on the handling of classified evidence, setting up a possible clash in the Senate next week.

Graham said Frist has vowed to bring Bush's bill directly to the Senate floor on Tuesday. Graham said he agrees with Frist that Congress must act soon so terrorist trials can begin at the U.S. military prison in Guantanamo Bay, Cuba.

Graham said he's been negotiating with White House lawyers for several weeks over the tribunal legislation, and he praised National Security Adviser Stephen Hadley, his top lawyer Michael Allen and acting Assistant Attorney General Steven Bradbury for good-faith efforts.

White House press secretary Tony Snow also extended an olive branch.

"We're wrestling with a way of dealing with what is clearly a thorny legal issue, but it's not intractable, and we think it's going to be taken care of," Snow said Friday. "And I know Senator Graham said that, and I've heard it from the president, as well."

Bush called on lawmakers to pass his tribunals measure quickly so detainees can be tried. The president increased the political pressure by disclosing that 14 senior al-Qaida members, including the alleged mastermind of the Sept. 11, 2001 attacks, were being sent to Guantanamo Bay from secret CIA prisons overseas.

The Supreme Court ruled in June that the Bush administration had exceeded its authority in establishing military tribunals without congressional action, prompting the need for legislation.

The case was brought by lawyers for Salim Ahmed Hamdan, a Guantanamo detainee who'd been a chauffeur for Osama bin Laden.

"The Hamdan decision has reinforced our need to ensure that military commissions are reflective of American values such as due process and the rule of law," Gen. Black, the head of the Army's legal apparatus, testified Thursday.

Senior lawyers at the White House, the Justice Department and the Pentagon argue that allowing terrorists to see classified evidence could expose how the United States has pursued al-Qaida and would put informants within the terror network in danger. But Graham said he's certain the Supreme Court would reject a law that denies accused terrorists access to classified evidence against them.

"It would be a tragedy to take one of the masterminds of 9/11, hold them accountable, only to have the case rejected by the Supreme Court for no good reason," Graham said.

"I'm frustrated when people say we're trying to give terrorists classified information," Graham said. "Well, that's garbage. We're going to protect our classified information, and we're going to protect our methods and sources."

Graham said that if his differences with the White House can't be bridged, he's prepared to push an amendment giving accused terrorists access to classified evidence against them.

"I think I will draft an amendment that will get majority support in the Senate, and there will be plenty of Republicans voting for it," Graham said. "I'm just predicting that we win. I don't know by what margin."

The House is set to take up tribunals legislation the week of Sept. 18.

Air Force Col. Morris Davis, who would run the Guantanamo trials, said accused terrorists will get fair trials and his corps of lawyers will work with whatever legislation Congress passes.

Davis said the 10 cases that moved forward before the Supreme Court ruling, including Hamdan's, didn't require the use of classified evidence to gain convictions.

"The world needs to see that we're giving these guys a fair trial," Davis said Friday in a telephone interview. "We want them to be open. We're going to do everything possible to declassify any evidence used in court. I don't think it's in anyone's interest to do things in secret."

Graham said it's possible to provide evidence without revealing how it was obtained.

"I don't mind giving the accused the phone conversation (transcript) of how they were plotting," he said. "But there's no need to tell them how NSA (the National Security Agency) works. There's no need to divulge confidential informants who put us on the terror trail and led us to evidence we will use to convict."

While a few other parts of Bush's measure concern Graham, they're not deal-breakers for him. The prohibition on sharing classified information, however, goes to the heart of what he said he taught Afghan military lawyers during an Air Force Reserve assignment there last month.

"The United States can't say it's a rule-of-law nation and at the same time potentially impose the death penalty on evidence never seen by the person to be put to death," Graham said.

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(c) 2006, McClatchy-Tribune Information Services.

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