The Pentagon's top uniformed lawyers took issue Thursday with a key provision of a White House plan to prosecute military detainees, contending that language potentially restricting a defendant's access to evidence could violate treaty obligations.
Their testimony juxtaposed that of a senior legal adviser at the Justice Department and challenged a leading House Republican's assertion that the United States must take a harder line when prosecuting terrorists.
Rep. Duncan Hunter, chairman of the House Armed Services Committee, said at a hearing that any military commission established to prosecute terrorists must allow the government to protect intelligence sources. In saying so, the California Republican aligned himself with the White House position.
"While we need to provide basic fairness in our prosecutions, we must preserve the ability of our war fighters to operate effectively on the battlefield," Hunter said.
Fundamental right to evidence
Hunter presented the military lawyers with various scenarios in which it might be necessary to withhold evidence from the accused if it would expose classified information. But the service's top lawyers said other alternatives must be explored - or the case dropped.
"I believe the accused should see that evidence," said Maj. Gen. Scott Black, the Army's Judge Advocate General.
Black and the other lawyers said such an allowance was a fundamental right in other court systems and would meet requirements under the Geneva Conventions.
But Hunter suggested that such a requirement could hamper prosecutions.
"Some of these acts of complicity in terrorist acts are very small pieces . . . and you don't have a lot of evidence," he said. The chairman repeated a scenario where the only piece of evidence would expose the identity of a secret agent and asked whether it would make sense to drop the case entirely.
"You get to the end of the trail, then yes sir, you do," Black responded.
Hearing's timing
The hearing came a day after Bush acknowledged for the first time that the CIA had secret prisons overseas and defended the practice of tough interrogations to force terrorists to reveal plots to attack the United States and its allies.
He revealed that 14 suspects, including the alleged mastermind of the Sept. 11 attacks, had been turned over to the Defense Department and moved to the U.S. detention center at Guantanamo Bay, Cuba, for trial.
The president also proposed legislation that would aid the government in prosecuting terrorists using secret military tribunals. The proposal left Republicans again divided over how the nation should treat its most dangerous terror suspects, setting up a showdown in Congress just weeks away from elections when all members will try to sell themselves as tough on terror.
Bush's announcement was immediately praised by those who said his policies were necessary to win the war on terror.
Senate plans
Senate Majority Leader Bill Frist, R-Tenn., said he would like to take up the bill on the Senate floor as soon as possible, leaving open the door for a vote on the measure before lawmakers break at the end of the month for election campaigning.
But some GOP moderates are challenging the proposal. They include three senators with hefty credentials: Sen. John McCain of Arizona, who spent more than five years as a prisoner of war in North Vietnam; Sen. Lindsey Graham of South Carolina, a former military lawyer who still serves in the Air Force Reserves as a reserve judge; and Sen. John Warner of Virginia, chairman of the Armed Services Committee.
Senate Minority Leader Harry Reid said Bush's decision to prosecute the terrorists held by the CIA was long overdue. But, he added, the military commission system should be properly vetted through the Armed Services Committee.
"The last thing we need is a repeat of the arrogant, go-it-alone behavior that has jeopardized and delayed efforts to bring these terrorists to justice for five years," Reid said.
