WASHINGTON – A House Republican has drafted a bill largely mimicking an administration plan to create military commissions to prosecute terror suspects, including a provision letting judges bar defendants from access to some evidence.
Rep. Duncan Hunter, chairman of the House Armed Services Committee, will propose on Wednesday that his panel approve a bill that would allow the exclusion of evidence to protect classified information. A floor vote is expected next week.
The bill puts Hunter, R-Calif., in line with the White House and Senate leadership, but at odds with his counterpart, Senate Armed Services Committee Chairman John Warner, R-Va. Warner and some of his colleagues have drafted a rival bill that would ensure a defendant be allowed access to all evidence against them.
Hunter's bill would require the commission members, who which act as a jury, to be informed if such a step is taken and instruct them to grant appropriate weight to the evidence, according to a copy of the draft.
That extra step, not included in the administration's proposal, was added to Hunter's proposal after the military's top lawyers testified last week that not allowing a defendant access to evidence would undermine the credibility of the court.
"Our foremost consideration in writing this legislation was to protect American troops and American citizens from harm," Hunter said in a statement Monday.
John Hutson, a former Navy judge advocate general and critic of the administration's plan, said Hunter's legislation would not represent a notable departure from the White House position. "It doesn't in any way solve the problem" of ensuring a defendant can dispute a false charge, said Hutson, now president and dean of Franklin Pierce Law Center in Concord, N.H.
Hunter's proposal includes other slight deviations from the administration proposal, including a requirement that no fewer than nine members of the commission be present in a case involving a potential death sentence. The administration bill could allow five members to deliver a death sentence in certain cases.
Hunter's bill also says the administration would be given authority to convene commissions only in the cases of "alien illegal enemy combatants." The administration's plan is said to seek broader authority for the president.
Being allowed to obtain evidence is considered a fundamental right in civilian and military courts for a defendant to mount an adequate defense. President Bush's proposal, delivered last week to Congress, would let a defense counsel with security clearance see the information but not show it to a client.
The provision has been a major sticking point in negotiations between the White House and Warner. Warner, working with Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., are expected to insist upon their position that a defendant be allowed to access all evidence.
Senate Majority Leader Bill Frist, R-Tenn., said Monday he wants to vote on the legislation by the end of the month and hopes the memory of the Sept. 11 attacks would help rally lawmakers behind the White House proposal.
Frist and Majority Whip Mitch McConnell traveled this weekend to the military's Guantanamo Bay prison in Cuba to hear from the "front lines" on the detainee and interrogation program.
"The goal is to make sure our government, whether it's intelligence or armed forces, has the tools we need to prevent the attack we all solemnly recognize today," Frist said.
McConnell, R-Ky., said the program has helped prevent attacks since 2001. The administration has been repeatedly criticized in the past five years for not implementing changes to improve security against terrorism.
"Among the things we're doing right is glean information" from terrorists, he said.
The leaders said they did not visit the 14 "high-value" detainees recently transferred to Guantanamo from the CIA's secret prison system. The cases of the terror suspects are considered the driving force behind the administration's proposal; because of a Supreme Court ruling in June that determined Bush's tribunal system was illegal, the president wants to pass legislation allowing it to move forward with the prosecutions.
"Our job here is to make sure we do get it right," Frist said.