White House Shifts Tack on Tribunals. Bush to Propose Only Minor Changes

Washington Post
White House Shifts Tack on Tribunals
Bush to Propose Only Minor Changes

By Jonathan Weisman and Michael Abramowitz
Washington Post Staff Writers
Thursday, July 20, 2006; A03

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Top White House officials took a harder line yesterday on a new system to try terrorism suspects, telling Republican senators that President Bush will soon formally propose a tribunal structure with only minor changes from the military commissions that were ruled unconstitutional last month.

Attorney General Alberto R. Gonzales and national security adviser Stephen J. Hadley met with Senate Armed Services Committee Chairman John W. Warner (R-Va.) and Sens. John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.), offering views on a new tribunal structure that they said could pass constitutional muster with a Supreme Court that rebuked the White House in June. The senators said Bush will give Congress a proposal soon.

But Senate Republican aides familiar with the discussion said that the White House position has hardened since a White House meeting earlier this month, when Hadley assured the same senators the White House could accept tribunals based largely on existing military law, known as the Uniform Code of Military Justice. That could place Bush on a collision course with the Senate, where a bipartisan group of lawmakers is preparing legislation that would hew closely to military law in outlining more rights for defendants than the administration wants to grant.

"They prefer starting with the commissions as currently structured, and adding a few changes," said a senior Senate Republican aide who spoke on the condition of anonymity because no proposal has been formalized. "Clearly, some [senators] believe that we have to take more from the UCMJ than the administration, at this time, wants."

The Bush administration offered starkly mixed signals last week, first releasing a Defense Department memo pledging that detainee treatment would abide by the Geneva Conventions, then sending lawyers from the Justice and Defense departments to testify before the House and Senate that certain parts of the conventions remain problematic and that Congress need only ratify the original commission plan to meet the Supreme Court's requirements for a legislative blessing.

The Senate Armed Services Committee concluded three days of hearings with testimony from the military's most senior lawyers, or judge advocates general, who said the existing rules for courts-martial should be the starting point for new legislation. Former top military lawyers said the Supreme Court's ruling stated that the commissions as originally drafted would be unconstitutional, even if formalized through legislation, because they would not secure defendants' rights to representation and evidence guaranteed by the Geneva Conventions.

But many Republicans -- and some Democrats -- believe court-martial rules would afford too much protection to terrorism suspects, allowing them to use the tribunals to access classified information, communicate with terrorist leaders, and delay a verdict and sentencing indefinitely. Some lawmakers -- with the approval of administration officials -- suggested that the UCMJ would hamstring soldiers on the battlefield, who would have to consider rules of evidence and defendants' rights as they hunted down terrorists.

"This attachment to the UCMJ doesn't strike me as essential to justice," said Sen. Jeff Sessions (R-Ala.). "The UCMJ was designed to try American servicemen, and we give them more rights than ordinary American citizens get in the United States. It was never designed to try unlawful combatants."

Warner told reporters some middle ground could be found: "You'll find, I think, a blending of the UCMJ and the commission principles."

White House spokeswoman Dana Perino said, "The court said we should work together with Congress, and we're committed to doing just that."