Bush Seeks Approval of Guantanamo Commissions

The President's Speech

President Bush is asking Congress to approve his rules for military commissions to try detainees accused of war crimes. He says court-martial rules are not appropriate for what he terms "illegal combatants." Some legal analysts are concerned that the president's rules leave defendants without enough rights.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne. Good morning.

President Bush acknowledged for the first time, yesterday, the existence of secret CIA prisons, during a high profile speech at the White House.

President GEORGE W. BUSH: A small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States in a separate program operated by the Central Intelligence Agency.

MONTAGNE: President Bush said 14 of those CIA detainees have been transferred to Guantanamo Bay. He sent Congress a proposal for legislation that would create military commissions to prosecute those men and others for war crimes.

NPR's Ari Shapiro reports on what the legislation would do.

ARI SHAPIRO: Consider this military commissions version 2.0. The Supreme Court struck down the president's first attempt at creating war crimes tribunals. The new version needs Congress' approval to take effect. Wake Forest University law professor Bobby Chesney says there are already some points of contention.

Professor BOBBY CHESNEY (Law, Wake Forest University): One of the big issues that's in dispute is whether or not the detainees should ever be excluded from the proceedings when classified information is being presented. And it's clearly important to the administration that the system have the option of excluding the detainee in some circumstances, and that's contained in this draft.

SHAPIRO: Human rights advocates protest that a trial can't be considered full and fair unless the defendant can see and challenge the evidence against him.

But David Rifkin, who worked in the Reagan and first Bush administrations, says there's a good reason not to show a defendant all of the intelligence that implicates him. What if the guy is acquitted?

Mr. DAVID RIFKIN (Former Justice Department member): Well, how are we supposed to release that person if he's, by virtue of being present through all aspects of the military commission proceedings, became privy to a very vital piece of intelligence?

SHAPIRO: Another controversy surrounds the admissibility of hearsay evidence. The White House would like to allow it. Former military attorney Jeff Walker finds that problematic. He says when he was a prosecutor, investigators would provide him with a summary investigation report. But at the trial, the investigators themselves would have to take the stand.

Mr. JEFF WALKER (Former attorney, U.S. military): It doesn't sound like that's the intent here. They're going to just submit this report. You have all kinds of interesting issues of translation error, or the coercive or torture methods that were used to extract this information. It's still an issue of confrontation. What rights are going to be given to these defendants to confront the witnesses and evidence against them?

SHAPIRO: The proposed legislation says evidence obtained through torture would not be allowed. But it says nothing of coercive interrogation tactics that fall short of torture. Harsh techniques were used on some of the 14 men who were recently brought to Guantanamo from CIA prisons. President Bush said he intends to prosecute those detainees. But it's not clear what would happen if Congress passes something other than the president's proposal. Hardy Vieux used to be a Navy lawyer. He says small amendments to this proposed legislation could significantly change the White House's plan of action.

Mr. HARDY VIEUX (Former attorney, U.S. Navy): I can certainly see a scenario where the government says, well, the new system as enacted by Congress is not what we wanted and therefore we're not going to proceed with these tribunals and we can just hold these, you know, 14 or some number of them, for however long we want. We'll just hold them indefinitely and not bring them to trial.

SHAPIRO: In a background conference call with reporters, senior administration officials gave no assurances that they would try top terrorist suspects if the president doesn't get his version of the proposal. This draft legislation also addresses things beyond military commissions. It would specify the offenses punishable under the war crimes act. Humiliating and degrading treatment of prisoners would no longer be considered a violation. The proposal would also prohibit detainees from filing lawsuits that allege their rights under the Geneva Conventions have been violated. And finally, it would eliminate many of the lawsuits that Guantanamo detainees have filed challenging the conditions of their confinement. President Bush has said that he would like to see the law passed this month.

Ari Shapiro, NPR News, Washington.

MONTAGNE: You can find President Bush's remarks on terrorism suspects at npr.org.

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