The Obfuscation Report

Washington Post Staff Writer
Wednesday, August 2, 2006; Page A04

A draft Bush administration plan for special military courts seeks to expand the reach and authority of such "commissions" to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal.

The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court's jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said.

The draft proposed legislation, set to be discussed at two Senate hearings today, is controversial inside and outside the administration because defendants would be denied many protections guaranteed by the civilian and traditional military criminal justice systems.

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.

An early draft of the new measure prepared by civilian political appointees and leaked to the media last week has been modified in response to criticism from uniformed military lawyers. But the provisions allowing a future expansion of the courts to cover new crimes and more prisoners were retained, according to government officials familiar with the deliberations.

The military lawyers received the draft after the rest of the government had agreed on it. They have argued in recent days for retaining some routine protections for defendants that the political appointees sought to jettison, an administration official said.

They objected in particular to the provision allowing defendants to be tried in absentia, said the official, who spoke on the condition of anonymity because he was not authorized to describe the deliberations. Another source in contact with top military lawyers said, "Their initial impression is that the draft was unacceptable and sloppy." The source added that "it did not have enough due-process rights" and could further tarnish America's image.

The military lawyers nonetheless supported extending the jurisdiction of the commissions to cover those accused of joining or associating with terrorist groups engaged in anti-U.S. hostilities, and of committing or aiding hostile acts by such groups, whether or not they are part of al-Qaeda, two U.S. officials said.

That language gives the commissions broader reach than anticipated in a November 2001 executive order from President Bush that focused only on members of al-Qaeda, those who commit international terrorist acts and those who harbor such individuals.

Some independent experts say the new procedures diverge inappropriately from existing criminal procedures and provide no more protections than the ones struck down by the Supreme Court as inadequate. John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000, said the rules would evidently allow the government to tell a prisoner: "We know you're guilty. We can't tell you why, but there's a guy, we can't tell you who, who told us something. We can't tell you what, but you're guilty."

Bruce Fein, an associate deputy attorney general during the Reagan administration, said after reviewing the leaked draft that "the theme of the government seems to be 'They are guilty anyway, and therefore due process can be slighted.' " With these procedures, Fein said, "there is a real danger of getting a wrong verdict" that would let a lower-echelon detainee "rot for 30 years" at Guantanamo Bay because of evidence contrived by personal enemies.

But Kris Kobach, a senior Justice Department lawyer in Bush's first term who now teaches at the University of Missouri at Kansas City, said he believes that the draft strikes an appropriate balance between "a fundamentally fair trial" and "the ability to protect the effectiveness of U.S. military and intelligence assets."

Administration officials have said that the exceptional trial procedures are warranted because the fight against terrorism requires heavy reliance on classified information or on evidence obtained from a defendant's collaborators, which cannot be shared with the accused. The draft legislation cites the goal of ensuring fair treatment without unduly diverting military personnel from wartime assignments to present evidence in trials.

The provisions are closely modeled on earlier plans for military commissions, which the Supreme Court ruled illegal two months ago in a case brought by Salim Ahmed Hamdan, a Yemeni imprisoned in the U.S. military prison at Guantanamo Bay, Cuba. "It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan, any variance from the courts-martial rules," the court's majority decision held.

No one at Guantanamo has been tried to date, though some prisoners have been there since early 2002.

John Yoo, a former Justice Department lawyer who helped draft the earlier plan, said Bush administration officials essentially "took DOD regulations" for the trials "and turned them into a statute for Congress to pass." He said the drafters were obviously "trying to return the law to where it was before Hamdan " by writing language into the draft that challenges key aspects of the court's decision.

"Basically, this is trying to overrule the Hamdan case," said Neal K. Katyal, a Georgetown University law professor who was Hamdan's lead attorney.

The plan calls for commissions of five military officers appointed by the defense secretary to try defendants for any of 25 listed crimes. It gives the secretary the unilateral right to "specify other violations of the laws of war that may be tried by military commission." The secretary would be empowered to prescribe detailed procedures for carrying out the trials, including "modes of proof" and the use of hearsay evidence.

Unlike the international war crimes tribunals for Rwanda and the former Yugoslavia, the commissions could rely on hearsay as the basis for a conviction. Unlike routine military courts-martial, in which prosecutors must overcome several hurdles to use such evidence, the draft legislation would put the burden on the defense team to block its use.

The admission of hearsay is a serious problem, said Tom Malinowski, director of the Washington office of Human Rights Watch, because defendants might not know if it was gained through torture and would have difficulty challenging it on that basis. Nothing in the draft law prohibits using evidence obtained through cruel, inhumane and degrading treatment that falls short of torture, Malinowski said.

The U.S. official countered that a military judge "would look hard" at the origins of such evidence and that defendants would have to count on "the trustworthiness of the system."

To secure a death penalty under the draft legislation, at least five jurors must agree, two fewer than under the administration's earlier plan. Courts-martial and federal civilian trials require that 12 jurors agree.