Bush administration lawyers Wednesday rejected congressional suggestions that suspected Al Qaeda and Taliban war criminals be prosecuted in the U.S. military justice system, saying military courts provide protections for defendants that are unwarranted in the war on terrorism.
The lawyers said the government must be able to use evidence and testimony gathered through “coercion” and hearsay and does not want to provide captives with lawyers before interrogating them for intelligence purposes.
Key lawmakers have argued that last month’s Supreme Court ruling directs them to use the Uniform Code of Military Justice as the legal framework for new war crimes courts. The lawmakers said they could amend the code to address specific administration concerns.
But lawyers from the Defense and Justice Departments told the House Armed Services Committee that such a plan was unworkable and urged lawmakers to retain the military commission system, despite the Supreme Court’s finding that it violated U.S. law and the Geneva Conventions.
Daniel Dell’Orto, the Pentagon’s principal deputy general counsel, said hundreds of changes to military laws would be required if Congress insisted on using the UCMJ as the basis for new war crimes courts.
“That is a gutting of the manual for courts-martial and the Uniform Code of Military Justice,” Dell’Orto said.
Dell’Orto said under current military rules, prosecutors would not be allowed to introduce hearsay into a war crimes trial. Such a ban would force prosecutors to call soldiers back from the front line or allow defendants to seek direct testimony from Al Qaeda leaders.
More controversially, Steven Bradbury, head of the Justice Department’s office of legal counsel, said the administration also wants to maintain “flexibility” in introducing evidence coerced from detainees.
“We do not use as evidence in military commissions evidence that is determined to have been obtained through torture,” Bradbury said. “But when you talk about coercion and statements obtained through coercive questioning, there’s obviously a spectrum, a gradation of what some might consider pressuring or coercion short of torture, and I don’t think you can make an absolute rule.”
