- The Washington Times - Wednesday, August 2, 2006


The Bush administration wants the new system for trying terrorism suspects to let prosecutors withhold classified evidence from the accused, Attorney General Alberto R. Gonzales said yesterday, holding to a hard line despite senators’ concerns.

Testifying before the Senate Armed Services Committee, Mr. Gonzales also said a forthcoming proposal would permit hearsay and coerced testimony to be used as evidence in terrorism trials. These approaches are not permitted under the Uniform Code of Military Justice, which is used for military courts-martial.

Mr. Gonzales played down the effect of denying classified evidence to terror suspects, telling lawmakers, “I think it would be an extraordinary case where classified information would be used and would not be provided to the accused.”

The attorney general said the administration, military lawyers and lawmakers they are consulting have not reached a decision on whether the administration’s proposal will bar defendants from classified evidence being used against them.

Mr. Gonzales’ testimony provided the latest details on how the administration would retool the tribunals that President Bush established in 2001 for trying terrorism detainees, a system that the Supreme Court rejected in June.

Some officials have spoken about enacting a system that would come close to the restrictive rules the tribunals were to use. Some Republicans as well as Democrats in Congress have said the new procedures should more resemble those used in courts-martial.

The U.S. military code “should constitute the starting point” for a new procedure, Mr. Gonzales said. “At the same time, the military commission procedures should be different from the procedures used to try our own service members.”

The Bush administration’s proposal drew continued skepticism from lawmakers, with questions raised about the authority it would grant the defense secretary and whether barring a defendant from classified evidence would be fair.

“We haven’t reached a final decision on how we are going to handle this,” said Sen. John W. Warner, Virginia Republican and Armed Services Committee chairman.

Earlier in the day, at a separate hearing by the Judiciary Committee, Chairman Arlen Specter, Pennsylvania Republican, said he would oppose any legislation that would let the defense secretary determine what crimes military tribunals may try — a provision reported to be in an early draft of the administration’s proposal.

Steven Bradbury, the top legal adviser to the Justice Department, confirmed the administration was considering granting the defense secretary such authority but added: “I would not say that the secretary of defense would be creating new crimes from whole cloth, but rather … recognizing offenses that exist under the laws of war and providing for their prosecution in the military process.”

At the hearing, Mr. Specter said handing control to the administration would invite another court fight. “Is there any reason we ought to follow that course that would be risky at best?” Mr. Specter asked.

“That’s certainly an avenue that’s open to Congress and one you might judge as appropriate,” Mr. Bradbury replied.

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