Senate Panel: Use Military Code for Detainees

Top current and former military lawyers tell the Senate Armed Services committee that they favor using the military code of justice, with some modifications, as the method of trying detainees on war crimes charges. Also at the hearing, two senators said they thought they had agreement from the White House to use that method, but are now unsure of President Bush's intentions.

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MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block. And we're going to begin this hour on Capitol Hill, where some top military lawyers spoke out against the White House plan to reconstitute military tribunals for suspected terrorists. The Supreme Court struck down the tribunals last month.

Today, judge advocates general for all the military services went before the Senate Armed Services Committee. They told lawmakers that Congress should adapt the existing Uniform Code of Military Justice for the war crimes trials.

NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

The day began badly for the administration, with the Chairman of the Armed Services Committee John Warner and Senator John McCain indicating that the administration already seems to be reneging on promises made. Both said they'd had meetings with top White House officials. Senator McCain.

Senator JOHN MCCAIN (Republican, Arizona): We did agree that the basis of proceeding on applicable legislation would be the Uniform Code of Military Justice. At that time, I was under the impression that was the administration's position. I hoped that it hadn't changed.

TOTENBERG: Whatever agreements the senators thought they had, administration officials testified this week in both the House and Senate that using the Uniform Code of Military Justice would make it impossible to prosecute terrorists captured on the battlefield.

Today, however, six current and former judge advocates general - representing all of the uniformed services - disagreed. They told the Armed Services Committee that while the UCMJ would have to be modified for war crimes trials, the basic framework can work. No one is suggesting, they said, that prisoners would have to be Mirandized, for example, or given counsel on the battlefield. The chain of custody rules for evidence would have to be modified, as would the rules on hearsay evidence. They noted that at the International Court on War Crimes, secondhand but corroborated testimony is permitted. As for using classified information, the JAGs noted that existing rules under the Military Code of Justice provide for a variety of methods to ensure that intelligence sources and methods are protected. Still, as retired Admiral John Hutson observed, there has to be a limit.

Admiral JOHN HUTSON (U.S. Navy, Retired): What you can't do, I think, is say to the accused, we know you're guilty. We can't tell you why, but there's a guy -we can't tell you who - who told us something, we can't tell you what. But you're guilty.

TOTENBERG: Some conservative Republicans focused on what they see as the problems created by the Supreme Court's ruling that Common Article Three of the Geneva Convention applies to all detainees. That provision bars cruel, inhumane, or degrading treatment. Texas Republican John Cornyn.

Senator JOHN CORNYN (Republican, Texas): What does this tell our interrogators? What does this tell our military personnel who are in charge of trying to obtain intelligence? To me, it seems like a recipe for disaster. Ambiguity is not our friend here.

TOTENBERG: South Carolina Republican Lindsey Graham followed up.

Senator LINDSEY GRAHAM (Republican, South Carolina): Can we win the war and still live within Common Article Three?

Unidentified Man #1: Yes, sir.

Unidentified Man #2: I agree with that. Yes, sir.

Unidentified Man #3: Yes.

Unidentified Man #4: Yes, sir.

Unidentified Man #5: Absolutely, sir.

Unidentified Man #6: Yes, sir. In fact, I'd turn it around and say I don't think we can win the war unless we live within Common Article Three.

TOTENBERG: To a man, the JAGs said troops have been trained for decades to comply with Common Article Three. But they agreed that some interrogation tactics could render prosecution impossible. That prompted this from Senator Hillary Clinton:

Senator HILLARY CLINTON (Democrat, New York): There's been a lot of hyped rhetoric about, you know, you're going to tear down this system. Look what the Supreme Court did. We're going to let all these terrorists loose. You do not have to let people go.

TOTENBERG: Indeed, the Supreme Court has reaffirmed the right to detain prisoners captured on the battlefield. The military tribunals established by President Bush and invalidated by the Supreme Court were set up to try accused war criminals and impose sentences up to and including the death penalty. It is that system that Congress is now trying to reconstitute. Said Senator Graham, this is as much about us as about them. It's about who we are. Nina Totenberg, NPR News, Washington.

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