Less than a day after President Bush sent his proposal for military commissions to try suspected terrorists, the judge advocates general of all four branches of the military pointed out what they say are serious flaws in the plan.
In particular, the military legal experts say they object to the use of evidence obtained under coercion — and the possibility that a defendant would not be allowed to confront secret evidence used in military trials.
The House Armed Services Committee held a long-planned hearing on the proposed legislation today.
The White House was forced to revise its scheme for military tribunals after the Supreme Court rejected the original plan in June. In its ruling, the high court suggested that Congress, not the executive branch, should devise such tribunals. Still, the Bush administration, not lawmakers, drafted the latest plan.
Steven Bradbury, the assistant attorney general who testified before the Senate panel for the Bush administration, assured lawmakers that this time, the White House got it right.
"These military commission procedures would provide for fundamentally fair trials," Bradbury said. But he also pointed out one provision that is unheard of in courts of law, that "classified evidence may be considered by the commission outside the presence of the accused."
In explaining the policy, Bradbury said that, "In the midst of the current conflict, we cannot share with captured terrorists the highly sensitive intelligence relevant to some military commission prosecutions."
For Gen. James Walker, staff judge advocate of the U.S. Marine Corps, that provision is a major problem.
"I'm not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people," he said, "where an individual can be tried without — and convicted without — seeing the evidence against him. And I don't think that the United States needs to become the first in that scenario."
The judge advocate generals of the Army, Navy and Air Force who also testified all agreed with Walker. Some also objected to the commissions' admissibility of evidence obtained under coercion that falls short of torture.
In its remarks about the military commission plan, the administration has insisted that it needs congressional approval for the plan this month.