Top military lawyers oppose Bush plan to expand military court powers

By Tom Regan  Christian Science

Top US military lawyers, in a moment of “rare, open disagreement” with the civilian administration, told a Senate hearing this week that they do not agree with key provisions of a draft Bush administration plan for special military courts. The Washington Post reports that the military lawyers said they do not see “eye to eye with the senior Bush administration political appointees who developed the plan and presented it to them last week.” They worry that the new plan – designed to replace one struck down by the US Supreme Court – would place US servicemen and women in jeopardy around the world.

“The United States should be an example to the world, sir,” Maj. Gen. Scott C. Black, judge advocate general of the Army, told Sen. Russell Feingold (D) of Wisconsin at the Senate Judiciary Committee hearing. “Reciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules for the commissions, and that’s the exact reason, sir. The treatment of soldiers who will be captured on future battlefields is of paramount concern.”

The Post also reports that the draft plan would give military courts the right to try people who are not connected with the Taliban and Al Qaeda and who are not “directly involved with acts of international terrorism.” The new plan would allow the Secretary of Defense “to add crimes at will to those under the military court’s jurisdiction.”

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.

Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

The military lawyers also objected to the provision that would allow a judge to give classified evidence to a defendant’s military lawyers, but not to the defendant himself, and to the provision that evidence obtained the admission of evidence obtained under coercive interrogations. “Sir, I don’t believe that a statement that is obtained under coercive – under torture, certainly, and under coercive measures should be admissible,” [Maj. Gen. Black] told Republican Judiciary Committee Chairman Arlen Specter of Pennsylvania.

The Associated Press reports that Attorney General Alberto Gonzalez held the administration’s “hard line” when he appeared in front of a Senate panel later in the day.

“We must not share with captured terrorists the highly sensitive intelligence that may be relevant to military commission proceedings,” Gonzales told the Senate Armed Services Committee.

Gonzales said detainee legislation also should permit hearsay and coerced testimony, if deemed “reliable” by a judge. These approaches are not permitted under the Uniform Code of Military Justice, or UCMJ, which is used for military courts-martial.

United Press International reports that Republican Sen. John McCain of Arizona took exception to Mr. Gonzalez’s comments about the use of coercive evidence. “I think that if you practice illegal, inhumane treatment and allow that to be admissible in court, [said McCain] that would be a radical departure from any practice that this nation” has used before.

Gonzalez also confirmed a Washington Post story that the White House plans to include language in the final form of the law that would “protect service personnel and civilians from domestic war-crimes prosecutions for any violations of the international laws of war that are committed under administration policies that have been withdrawn or ruled illegal.”

An editorial in the ContraCosta Times of California argues that the plan would pose a direct threat to the liberty of Americans in ways that go beyond concerns about wiretapping phones or tracing phone calls.

Legal experts say [the plan] could authorize the military to detain indefinitely US citizens who had only tenuous ties to terror networks. Scott Silliman, a retired Air Force judge advocate, went even further. He said the broad definition of enemy combatant could include US citizens who are loosely suspected of terrorist ties. Such a person would lose all the rights of a civilian court …

Any detention bill must be far more narrowly drawn to include only enemy combatants who are caught on a battlefield during armed conflict. Even they should be subject to proper military justice. No law should pose a threat to anyone in this country who might be suspected of being tied to a terror group. We trust that there are enough patriots in Congress to kill a measure that insults all freedom-loving Americans.

In an editorial, the Los Angeles Times reports that, thanks to Republican lawmakers with military experience and the military lawyers, the Bush administration has probably abandoned the notion that “Congress should simply rubber-stamp whatever procedures the president deems sufficient to try suspected terrorists at Guantanamo.”

Finally, the Associated Press reports that detainees at Guantanamo Bay “have attacked their military guards hundreds of times, turning broken toilet parts, utensils, radios and even a bloody lizard tail into makeshift weapons.” The report indicates that while the attacks are numerous, serious injuries are rare.

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