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Detainee issue splits Congress

THE BALTIMORE SUN

WASHINGTON -- As Congress began hearings this week on a new system for bringing terror detainees to trial, there was only one consensus: that the worst outcome would be a system that is again rejected by the Supreme Court.

Lawmakers split on whether to scrap the president's system of military tribunals - possibly in favor of a system based loosely on the military courts - or to write the tribunals into law with a few changes.

Douglas W. Kmiec, a Pepperdine University law professor who was a top Justice Department lawyer during Ronald Reagan's administration, said Congress' efforts also might be found lacking by the justices.

"For a good long time, the president has been the only actor on the stage, and therefore - like in the old-fashioned country melodramas - the justices have been able to aim all their boos and hisses at the president as the primary villain. Well, now Congress, too, will be on the stage," he said.

"There's no reason to believe that the skeptical judicial audience will be any kinder to Congress than it was to the president."

As Congress wrangles over creating a new system, the split on Capitol Hill mirrors an apparent divide on the issue within the Bush administration. Reaching agreement is expected to be a knotty task.

Besides resolving its own differences, the challenge for Congress is how to please a White House that still backs its original system of military commissions and a Supreme Court that sent a strong message two weeks ago that detainees must be afforded some basic rights.

Lawmakers will soon find themselves mired in discussions about the nuts and bolts of criminal trials, including when to allow a suspect to have a lawyer and what to do about classified evidence.

The tribunals set up by a presidential order in 2001 provided for few of the basic rights typically afforded to a criminal defendant, including the right to be present during court proceedings.

The task for Congress is determining how to create a process that is fairer while acknowledging that standard criminal rules might be too lenient for terrorism suspects.

"The issue is, what is coercion? What is exculpatory evidence?" said Sen. Jeff Sessions, an Alabama Republican.

"What's important here is to make sure that we can try these individuals fairly but, at the same time, not disrupt the ongoing war on terror," White House spokesman Kenneth Lisaius said. "Terrorists certainly don't deserve the same standards to which our troops are entitled."

The Supreme Court ruled that, at the least, Bush had overstepped his constitutional bounds in crafting the military commissions without seeking approval from Congress, essentially throwing the issue into lawmakers' laps.

Much of the debate has focused on whether to base the new system on the original tribunals or on the military justice code.

Republican Sen. Lindsey Graham of South Carolina said an important step toward resolving that issue is toning down the bluster on Capitol Hill.

"There's so much rhetoric out there that is just so off base and so politically motivated," he said.

Graham, who has served as a judge advocate general and is a reserve judge for the Air Force Court of Criminal Appeals, said his colleagues should stop any efforts to exploit the process for political gain. American soldiers need the new rules to be set up quickly, he said.

"This is not about November '06. This is about years to come," Graham said. "If we politicize this, we'll let our military down."

Sen. John W. Warner of Virginia, a Republican who is chairman of the Senate Armed Services Committee, said he would continue to hold hearings in July and August to gather ideas and opinions about the best approach for trying detainees.

The earliest that a firm legislative proposal is expected to be ready is shortly after Labor Day, when Congress returns from its monthlong August recess.

That means the time for passing legislation is short. Senate Majority Leader Bill Frist of Tennessee said this week that he wants to send senators back home to campaign by the end of September, leaving few legislative days in which to work out a compromise.

Before that, lawmakers have to settle on where to start.

Justice Department and Pentagon officials have made a forceful public case for ratifying the military commissions set up in 2001, but lawmakers said others at the White House have privately expressed a willingness to use the U.S. military's rules for trying its own soldiers as a foundation for the trials of detainees.

In Congress, the House seems more inclined to codify the president's tribunal system, and senators are emphatic that giving the administration a blank check is unacceptable.

"We're not going to authorize the president to do what he wants," said Sen. Carl Levin of Michigan, the top Democrat on the Armed Services Committee. "We're not simply going to ratify what he's done."

Sen. John McCain, an Arizona Republican, said it would be easier to start with the Uniform Code of Military Justice as the foundation for new rules because "that's what the Supreme Court told us to do."

McCain, who spent more than five years as a prisoner of war in Vietnam, said he put more stock in testimony this week by current and former judge advocate generals than in the opinions of the administration's lawyers.

The JAGs said that the military code, which sets out rules for apprehending, holding and trying military personnel, would be the best place to start, although major modifications would be needed to apply it to terrorism suspects. In many ways, the military system offers more protections for a defendant than do civil criminal courts.

"Those are the ones who members of Congress will pay the most attention to, not some political appointee," McCain said.

Lisaius, however, said there is a growing recognition that an approach based solely on the military code "is incompatible with the war on terror."

House leaders appear to be leaning toward the White House's view and a system that hews more closely to the original tribunal setup, which could set up a clash with the Senate.

California Rep. Duncan Hunter, a Republican who is the head of the House Armed Services Committee, said during his panel's hearing that writing rules for trials is "not a separation of powers issue; it's an issue of how to defeat the enemy."

Another committee member, Rep. Roscoe G. Bartlett, a Western Maryland Republican, said he would not support the tribunal system.

Bartlett said he has been deeply troubled about the commissions set up by the White House. That puts him in the minority among House Republicans.

"We have a Constitution - I have one in my pocket - and when it talks about the rights of people, it does not say 'citizens,"' he said. "These are human beings - maybe nasty ones, but human beings - and they deserve to be treated with respect."

Lisaius said the starting point is less important than the final product.

"We think we can work with Congress to get the right result and to provide a procedure that will enable us to try al-Qaida terrorists for their war crimes and keep Americans safe without compromising our values and fundamental fairness," he said.

Graham said he is open to any suggestions, adding that lawmakers are going to pay close attention to the legal and human rights experts who will appear before them in coming weeks.

"We need people a lot smarter than me to start coming up with ideas," Graham said.

gwyneth.shaw@baltsun.com

julie.davis@baltsun.com

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