Bush Ignores Supreme Court Again...."Whats New"

Plan for Tribunals Would Hew to the First Series
By Kate Zernike and Neil A. Lewis
The New York Times

Thursday 07 September 2006

Washington - Under the measure that President Bush proposed on Wednesday, Khalid Shaik Mohammed and other major terrorism suspects would face trials at Guantánamo Bay in military tribunals that would allow evidence obtained by coercive interrogation and hearsay and deny suspects and their lawyers the right to see classified evidence used against them.

The proposed tribunals would largely hew to those that the Supreme Court rejected in June. The measure says Congress would, by approving the proposed tribunals, affirm that they are constitutional and comply with international law, which the Supreme Court said they did not.

Senate Republicans, who have been working on their own bill, said they were wary of the provisions on hearsay and classified evidence and questioned whether the administration had resolved the problems that the court raised.

The Republicans said that the administration had come a long way in resolving differences with Congress in the last month and that they expected to smooth over remaining differences in time to pass a bill before breaking for the final burst of election campaigning.

"I do not think we can afford to again cut legal corners that will result in federal court rejection of our work," Senator Lindsey Graham, Republican of South Carolina, said.

A former military judge, Mr. Graham is pivotal in the negotiations between the White House and Congress.

At the same time, the Pentagon released a new Army Field Manual that requires humane treatment of all terrorism suspects and sets strict limits on interrogation techniques.

The rules apply to the 14 members of Al Qaeda who the president announced had been transferred from Central Intelligence Agency prisons to the Guantánamo Bay naval base in Cuba. Those prisoners have been interrogated in C.I.A. prisons and could be questioned further and brought to trial under whatever provisions Congress approves.

The manual covers specific methods that, although never authorized in the previous version, have been disclosed in abuse cases, including at Guantánamo and at the Abu Ghraib prison in Iraq, since 2001.

The manual, held up for more than a year by debates in the administration and with Congress, specifically bans forcing a detainee to be naked or perform sexual acts; using beatings and other forms of causing pain, including electric shocks; and placing hoods over prisoners' heads or tape on their eyes.

Also barred are staging mock executions; withholding food, water or medical care; or using dogs against detainees. In addition, the manual bans a technique known as waterboarding, in which a prisoner is strapped to a board and made to feel as if he is drowning.

"No good intelligence is going to come from abusive practices," Lt. Gen. Jeff Kimmons, a senior intelligence officer, said at a news conference in the Pentagon.

Democrats and Republicans praised the changes in the manual. Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, welcomed them as long overdue.

"If the administration had behaved this way before Gitmo and the drifting of Gitmo to Abu Ghraib,'' Mr. Levin said, "we would have been a lot more secure country, our troops would have been more secure, and our position in the world would have been more favorable."

Mr. Levin and others contested points in the president's proposal for tribunals, in particular denying the defense the right to see, and therefore respond to, classified information that is shown to the jury and allowing the introduction of hearsay and coerced evidence.

Those two categories would be allowed if the judge decided that they were probative and reliable.

"If the defense cannot see what the jury sees and argue against it in some way, then it's inconsistent with our current federal rules, which are applied in trials against terrorists," Mr. Levin said.

Senator John McCain of Arizona, another important Republican on the committee, which will take the lead on bills, said a judge should decide whether classified evidence could be introduced.

"That's pretty much been a 200-year standard for treatment of classified material," Mr. McCain said.

According to the proposal, only in "extraordinary circumstances" could a judge allow classified evidence, and if it was allowed, the defendant could not be present when it was introduced.

Senators and top military lawyers had urged the administration to use military law as its guide in drafting proposal.

Mr. Graham emphasized again on Wednesday that the military justice system outlined ways to allow classified evidence to be introduced without jeopardizing national security.

"I do not believe it is necessary to have trials where the accused cannot see the evidence against them," he said.

He predicted that this would make the bill vulnerable to more court challenges and that it would establish a bad precedent that could be used against American troops if other countries brought them to trial. In the bill, the administration says military laws for courts-martial were inappropriate for terrorists. To use those rules, the measure says, "would make it virtually impossible to bring terrorists to justice for their violations of the law of war."

The proposal found some support.

Senator John Cornyn, the Texas Republican on the Senate Armed Services Committee, said he would endorse the approach over legislation drafted by colleagues.

"I just believe that as a matter of principle that you don't unnecessarily share classified information with terrorists in the course of a military tribunal," Mr. Cornyn said.

Senator John W. Warner, the Virginia Republican who is chairman of the Armed Services Committee, said he would release the panel's proposed measure in a few days.

The House Armed Services Committee is scheduled to meet on Thursday to hear testimony on the proposed legislation from military and administration lawyers.

In rejecting earlier tribunals, the Supreme Court said they violated a provision of the Geneva Conventions known as Common Article 3. The provision mandates the humane treatment of captured combatants and prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

The court said those minimal rights were missing in the first commissions because of the failure to guarantee the defendant the right to attend the trial and the prosecution's ability under the rules to introduce hearsay evidence, unsworn testimony and evidence obtained through coercion.

The proposed legislation deals with the objections by saying Congress stands by the president in deeming them in compliance with Common Article 3. In effect, the legislation, if enacted, would pit Congress and the executive branch against the court in interpreting what was meant by the laws that say the United States will comply with Common Article 3.

To inoculate officials and civilian interrogators from the potential of being charged under the War Crimes Act for what they may have done, the bill has a provision making it retroactive to Sept. 11, 2001, the day of the terrorist attacks.