The Bush administration is crafting legislation to expand legal protections for foreign terrorism suspects to comply with a recent U.S. Supreme Court ruling. Attorney General Alberto Gonzales told a Senate panel Wednesday the administration wants to bar terror suspects from getting classified information, and keep open the option of using testimony obtained through coercive measures.
The Bush administration is drafting new policy on the handling of terror suspects in response to a Supreme Court ruling in June.
The court ruled that the military commissions set up by the administration to try terror suspects did not comply with U.S. law and were inconsistent with Common Article Three of the Geneva Conventions, which ensures the humane treatment of detainees.
Attorney General Alberto Gonzales told the Senate Armed Services Committee the administration is considering using the Uniformed Code of Military Justice, or U.C.M.J., which is used for military courts-martial, as the basis for revising military commissions. But he said it is doing so with some changes, arguing that prosecuting terrorists is different than prosecuting members of the U.S. armed forces.
"The UCMJ should constitute the starting point for the new code. At the same time, the military commission procedures should be separate from those used to try our own service members, both because military necessity would not permit the strict application of all court martial procedures and because there are relevant differences between the procedures appropriate for trying our service members and those appropriate for trying the terrorists who seek to destroy us."
Gonzales says the administration is considering departing from the Uniformed Code to allow hearsay evidence, limiting rights against self-incrimination before a trial, and limiting defendants' access to classified information as it crafts new legislation on the prosecution of terrorists.
But some lawmakers took issue with several of those proposals.
Senator Lindsey Graham, a former military lawyer who is also a reserve judge on the Air Force Court of Criminal Appeals, questioned the wisdom of limiting defendants' access to classified information, arguing it is important to treat suspects the way Americans would want U.S. military personnel to be treated in a similar instance:
"The question for me becomes if an American service member is being tried in a foreign land, would we want that trial conducted in a fashion that the jury would receive information about the accused guilt, not shared with the accused and that person be subject to the penalty of death. I have a hard time with that."
Gonzales said the administration has not made a decision on the matter.
The Attorney General said the administration is considering allowing coerced testimony be used as evidence in terror trials if it was reliable and useful.
Senator Carl Levin of Michigan, the top Democrat on the committee, said that proposal would leave the administration's new policy vulnerable to another court challenge.
Earlier, at a Senate Judiciary Committee hearing on the same topic, the Republican chairman, Senator Arlen Specter of Pennsylvania, also expressed concern that the administration was drafting new policy that could again be challenged by the Supreme Court.
The Justice Department's top legal adviser, Steven Bradbury, told the committee the administration is considering authorizing the secretary of defense to determine what crimes may be tried by military tribunals.
Senator Specter, in this exchange with Bradbury, said he would oppose such a measure:
SPECTER: Wouldn't it be preferable if the administration wants to make additions that you come to Congress now, what you have in mind, let us consider it, let us add it if we think it is correct, as opposed to moving again on risky ground and having the issue go to the Supreme Court again?
BRADBURY: That is certainly an avenue open to Congress and one that you might judge that is appropriate.
The Senate Armed Services Committee is expected to hold additional hearings on the issue, and Majority Leader Bill Frist of Tennessee says he expects legislation to reach the Senate floor in September.