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David Scull for The New York Times
Two top military lawyers, Brig. Gen. Kevin M.
Sandkuhler of the Marines, left, and Maj. Gen. Jack L. Rives of the
Air Force, testifying Thursday. |
Military Lawyers Urge
Protections for Detainees
By KATE
ZERNIKE,NYTimes on the Web, July 14, 2006
WASHINGTON, July 13 — The top
lawyers from the Army, Navy, Air Force and Marines contradicted the Bush
administration on Thursday on how to bring terror suspects to trial, endorsing
an approach that extends more human and legal rights to detainees than one that
administration lawyers have pressed Congress to authorize.
Testimony by the military lawyers to the Senate Armed Services Committee
provided a new indication of divisions within the administration about how far
to extend the protections of the Geneva Conventions to terror suspects.
Those fissures appear to reflect the same disagreements between White House
conservatives and the military that have long left the government split on
questions about the treatment of terror suspects.
Senators complained that they were hearing mixed messages from the
administration. Even as administration lawyers have been publicly urging
Congress to ratify the president’s plan for trials that offer few rights, they
said, other White House officials have privately said that they would go along
with an approach similar to what the military lawyers support, offering broader
protection for detainees.
Senator John W. Warner, Republican of Virginia, the committee chairman, said he
was “somewhat perplexed” by the testimony of administration lawyers this week,
given his conversations with some White House advisers. “I do not believe
we in Congress have received the last words by any means,” Mr. Warner said.
In the two weeks since the Supreme Court struck down the president’s plan for
tribunals for terror suspects, sending the issue to Congress, administration
lawyers appearing on Capitol Hill have encouraged Congress to simply pass
legislation ratifying those tribunals. They have suggested that Congress
could pass legislation establishing that an important provision of the Geneva
Conventions does not apply to terror suspects or limiting the protections under
that provision. The provision, known as Common Article Three, guarantees
rights to prisoners.
But several Republican senators have said the best way to reassure the world
that the United States shares common notions of human rights would be to shape
the trials using procedures laid out in the Uniform Code of Military Justice, to
which the court referred.
The military lawyers, who were repeatedly rebuffed by the administration
starting in 2001 in discussions about how to treat detainees, were welcomed as
heroes at the hearing on Thursday by Republicans and Democrats alike, suggesting
the Senate’s disinclination to go along with the president’s approach.
Brig. Gen. Kevin M. Sandkuhler, the top lawyer for the Marines, called the code
of military justice “the gold standard.”
Of the president’s tribunals, Rear Adm. James McPherson, the top Navy lawyer,
said, “I think the existing procedures are wanting.”
Senator John McCain, Republican of Arizona, said Thursday that Stephen J.
Hadley, the president’s national security adviser, had told him and Senator
Lindsey Graham, Republican of South Carolina, that the military code would be
“the basis of the proceeding.” But a White House spokeswoman, Dana Perino,
questioned that account, saying there was a consensus that the code would not be
used to try detainees.
Mr. Hadley, in an interview from Germany, said: “What we are trying to do
is come up with a system by which we can bring under the laws of war, in a
military context, charges against terrorists. The goal is to get something
that provides as many rights as we can, but that recognizes the nature of the
people we are dealing with and recognizes the constraints, including legal
proceedings that deal with classified information.’’
The White House has seemed divided on the central question of whether detainees
should be granted legal and human rights under the Geneva Conventions.
Last week, Deputy Defense Secretary Gordon R. England sent out a memorandum
acknowledging that detainees were entitled to those rights under Common Article
Three, prompting the White House on Tuesday to reverse a February 2002 order
saying that the conventions did not apply.
Pentagon and White House officials took issue with an editorial in The Wall
Street Journal on Thursday that cited sources saying Mr. England’s memorandum
“was issued without any wide deliberation with, or even particular awareness by,
the White House counsel’s office or the Justice Department.” A senior
Defense Department official said the memorandum “was coordinated across the
interagency.” Ms. Perino would say only that “the White House was
notified” and not whether the president himself was informed.
Administration lawyers have continued to resist extending the protections,
saying in testimony this week that the memorandum reflected only an announcement
of the court’s decision, not a policy change.
While another hearing this week featured sharp exchanges between administration
lawyers and senators from both parties — Mr. Graham told the lawyers that they
should “forget about” the tribunals President Bush tried to set up — the hearing
with the military lawyers consisted mostly of senators and witnesses affirming
their shared views.
Senator Warner told the military lawyers that “there’s certainly no consensus
here to just rubber-stamp what’s in place.”
When Senator Carl Levin of Michigan, the senior Democrat on the committee,
suggested that “none of you believe we should simply ratify” the president’s
approach, he was met with a string of nods from the uniformed lawyers on the
panel.
And when Mr. McCain asked if Secretary England had done the right thing in
declaring that the Geneva Conventions extended to detainees, the panel nodded
again.
“This panel has got it right,” Senator Graham said.
Mr. McCain cautioned against narrowing the protections granted to detainees,
arguing that the debate was not about extending rights to terrorists, but
promoting a high standard. “America’s image in the world is suffering,” he
said.
“We will have more wars, and there will be more Americans who are taken
captive,” said Mr. McCain, who was a prisoner of war for six years in Vietnam.
“If we somehow carve out exceptions to treaties to which we are signatories,
then it will make it very easy for our enemies to do the same in the case of
American prisoners.”
But other senators cautioned that the issue was far from settled.
“Some people at this table and others are going to go dancing to the media and
say we now know where we’re going with this thing, when in fact, we don’t,” said
Senator James M. Inhofe, Republican of Oklahoma.
Mr. Inhofe and several other Republicans said any system based on the military
code would grant detainees the same rights as members of the military.
Some senators also said, as administration lawyers have argued, that Common
Article Three was too vague and could lead to American troops being prosecuted
under the War Crimes Act for treatment that might seem too harsh.
“Ambiguity is not our friend here,” said Senator John Cornyn, Republican of
Texas.
David E. Sanger, Thom Shanker and Sheryl Gay Stolberg
contributed reporting for this article.
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