Split hinted on detainees

Use of military law is OK'd, senators say


WASHINGTON -- White House officials have agreed that Congress can use existing military law as the basis for developing a system for prosecuting war detainees in U.S. custody, key senators said yesterday - a position that differs from testimony earlier this week from Pentagon and administration lawyers.

The varying government positions reflect apparent divisions within the Bush administration as lawmakers set about reworking detainee policies in the wake of a Supreme Court ruling last month striking down much of the system President Bush put in place after the Sept. 11 attacks.

On one side, the administration's civilian lawyers in the departments of Justice and Defense express a preference for retaining major features of a military commission system implemented by Bush, which was ruled illegal in last month's landmark Supreme Court decision. On the other side, the administration's uniformed military lawyers prefer a system more closely resembling existing military law - in particular, the Uniform Code of Military Justice, which governs court-martial proceedings for U.S. service personnel.

For the most part, in hearings this week, House Republicans appeared to back the more hard-line approach favored by the administration's civilian lawyers, and Senate Republicans tended to side with the uniformed lawyers, whose objections to the administration's tribunal system had been overruled when it was designed four years ago.

The division between House and Senate GOP members was on display at a Senate Armed Services Committee hearing yesterday, where six of the country's top military lawyers said they would not recommend that Congress simply rubber-stamp the tribunal system designed by the Bush administration. Instead, they expressed support for a new system combining elements of the Uniform Code, international law and the administration plan.

Last month, the Supreme Court ruled that the administration's military commissions for Guantanamo Bay - designed to try terrorist suspects for war crimes - were illegal because they did not conform with existing law - in particular, the military code and the Geneva Conventions. The court held that the administration could not devise a legal system independently of Congress, and that it was up to lawmakers to debate and pass legislation on how to hold trials for those among the 450 detainees at Guantanamo who are suspected of war crimes.

The military lawyers who testified yesterday - the current Judge Advocates General of the Army, Navy and Air Force, a staff judge advocate of the Marine Corps, and two retired JAGs - each said that Congress should not rubber-stamp the tribunals designed by the administration but should seek to follow the Uniform Code to a greater extent.

"We have a military commissions procedure that was established that attempted to provide fundamental rights. We have the UCMJ, which we know is the gold standard, that achieve the protection of fundamental rights. My view is that we are looking for a leveling between the two," said Brig. Gen. Kevin Sandkuhler, a staff judge advocate in the Marine Corps.

Maura Reynolds writes for the Los Angeles Times.

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