- The Washington Times - Wednesday, July 12, 2006

The chairman of the House Armed Services Committee yesterday warned against making it difficult for the military to question and prosecute terrorist suspects, saying the executive branch must be allowed to protect Americans in the war on terror.

“We have to give the executive the tools to fight this war. … We won’t lower our standards. We will always treat detainees humanely, but we can’t be naive,” said Rep. Duncan Hunter, California Republican. “We are dealing with the enemy in war, not defendants in our domestic criminal justice system.”

Mr. Hunter’s committee held a hearing yesterday to help lawmakers craft legislation in response to a Supreme Court ruling regarding terrorism suspects held at Guantanamo Bay prison in Cuba.

The high court ruled that the Bush administration lacked the authority to try “enemy combatants” under military tribunals, instead of before civilian juries or courts-martial. The Pentagon this week issued a memo instructing all personnel to follow the 1949 Geneva Conventions in their treatment of enemy prisoners.

Administration witnesses rejected the idea of full courts-martial.

“We firmly believe that it is neither appropriate as a matter of national policy, practical as a matter of military reality nor feasible in protecting sensitive intelligence sources … to require that military commissions follow all of the procedures of a court-martial,” said Department of Justice attorney Steven G. Bradbury. But, he said “we are stuck” using that system under the Supreme Court decision, unless Congress takes action or the administration tries a new legal justification.

Pentagon attorney Daniel J. Dell’Orto urged lawmakers to simply codify President Bush’s setup, saying the high court’s main problem was that Congress wasn’t consulted.

“All Congress needs to do … is to ratify that process, and we can move on very, very quickly,” he said.

Retired Navy lawyer John D. Hutson said such a move would be “a dramatic mistake.”

He said Congress instead should base detainee policy on the Uniformed Code of Military Justice and the courts-martial process, altering the code as needed.

The United States stands for rule of law, he said, but “it’s not a rule of law if you only apply it when it’s convenient.”

Mr. Hunter wouldn’t commit to a single approach, but said the committee would examine Mr. Bush’s setup. He criticized the full court-martial idea, saying “it may not be practical on the battlefield to read the enemy their Miranda rights.”

Rep. Vic Snyder, Arkansas Democrat, dismissed that argument as a “red herring.”

“Nobody’s saying that,” he said.

Rep. K. Michael Conaway, Texas Republican, said, “My first impression is that the administration’s proposal, codifying the president’s plan, ought to be looked at seriously.”

Rep. Ellen O. Tauscher, California Democrat, favored Mr. Hutson’s idea, saying it would take “things that have worked and build on them.”

Mr. Hunter said Congress will balance the need for swift prosecution with “basic fairness” for defendants, but that “keeping these bad people off the battlefield should be a key consideration” and should take precedence over full defendant protection.

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