Bush’s Plan Allows Coerced Evidence

By Maura Reynolds, Richard B. Schmitt and David G. Savage
The Los Angeles Times
Posted by Bulatlat

Convictions could also be based on material unseen by the accused. The Senate may object.

Washington — President Bush asked Congress Wednesday to approve a new system of military-style justice for terrorism suspects that would, for the first time, permit convictions in American courts based on the use of coerced evidence.

The Bush administration proposal also would permit war crimes convictions based on evidence that was never made available to the accused.

Bush said reliance on such controversial information at trial would be strictly limited, permitted only under a judge’s ruling that it was relevant and credible, and that the use of coerced statements would stop short of allowing evidence obtained through torture.

“I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values,” the president said, announcing that the new system would be used to prosecute the most notorious detainees in U.S. custody.

The administration’s proposed rules resemble those imposed under an executive order that Bush issued shortly after the Sept. 11 attacks; it set up military commissions for terrorist suspects captured overseas, some of whom were sent to the U.S. detention facility in Guantanamo Bay, Cuba. The Supreme Court struck down that system in June, in part because it had not been approved by Congress.

Now Bush is going back to Congress seeking approval for his military commissions, with changes, two months before an election in which national security has taken center stage.

It is not clear whether the president’s plan will gain traction on Capitol Hill, where lawmakers have been working for weeks on their own proposals for military commissions to try terrorist suspects.

Two of the leading authors of a nearly complete Senate bill, Armed Services Committee Chairman John W. Warner (R-Va.) and Sen. Lindsey Graham (R-S.C.), said their bill differs from the administration plan in key areas — including the use of classified and coerced evidence — but also said that differences may not be insurmountable.

“The goal for me is to take the committee bill and the administration bill and find middle ground so we can get commissions authorized in a way that will withstand judicial scrutiny, get congressional buy-in, and be a form we can be proud of as a nation to render justice to terrorists,” Graham said.

Details of the Senate-drafted bill are expected to be released in the next two days, Warner said.

Democrats adopted a wait-and-see posture Wednesday, indicating they were more likely to support the Warner-Graham bill than the administration’s plan. Sen. Carl Levin of Michigan, the committee’s top Democrat, said he had “serious concerns” about the Bush bill.

Many Democrats described the policy outlined by Bush as a retreat for the administration. “This is a major reversal from past Bush administration policy, which held that no new law was needed. It is essentially a mea culpa, cloaked in rhetoric,” said Sen. Dianne Feinstein (D-Calif.).

In the House, where Republican members largely have supported the administration’s approach to detainees, Rep. Duncan Hunter (R-El Cajon), chairman of the Armed Services Committee, planned to convene a hearing on the administration’s proposal today. The administration’s proposed system would incorporate many procedures used for U.S. military personnel in court-martial proceedings — but with several major distinctions. It would allow hearsay evidence and confessions obtained through coercive interrogations, assuming a judge found the information to be probative and credible.

The rules would entitle the accused to public trials, access to lawyers and the right to be present during trial, raising the prospect of high-profile proceedings involving what the government has labeled some of the most ruthless terrorists in the world.

The White House called on Congress to enact the legislation as a first step toward bringing to justice the likes of alleged Sept. 11 planner Khalid Shaikh Mohammed and 13 other terror suspects who had been held by the CIA in undisclosed prisons overseas.

Bush said in a surprise announcement Wednesday that the detainees had exhausted their value to intelligence authorities and had been transferred to Guantanamo Bay. But administration officials acknowledged that the timing of any trials would depend on what rules lawmakers embrace.

Senators have been working on legislation related to detainees since the Supreme Court ruled that the administration’s proposal for military commissions was illegal.

Based on senators’ descriptions, the working draft of their bill differs from the Bush proposal in a few key ways. It does not permit convictions based on evidence that the accused could not see, for instance.

Graham said that any system used on foreign detainees must be the same as U.S. officials would want to see for American personnel captured overseas.

“Whatever we do … could come back to haunt us,” Graham said.

The administration’s proposed system would create more than two dozen offenses, from murder and pillaging to lesser crimes such as conspiracy. A military officer would preside over the commission, which would include at least five members. The rules would require a two-thirds majority to convict. Defendants could face the death penalty.

The plan was criticized Wednesday by civilian defense lawyers and other legal experts.

“Today’s plan is a radical scheme, designed to resurrect a system of martial law that literally America has never seen,” said Neal K. Katyal, a professor at Georgetown Law Center in Washington, who argued the Hamdan vs. Rumsfeld case before the Supreme Court that resulted in the ruling against the military tribunals.

“Do Americans want their sons or daughters tried under these kinds of circumstances?” Katyal said.

The Supreme Court said the system invalidated in its June ruling fell short of meeting U.S. law and international standards. The court also held that U.S. personnel could be prosecuted if they subjected prisoners to inhumane or degrading treatment in violation of the Geneva Convention. Bush’s legislation seeks to limit the exposure of U.S. personnel to such prosecutions by foreign courts.

7 September 2006

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