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Defense Lawyers Assail Legislation on Detainees

The bill faces scrutiny for stripping habeas corpus. Rights groups worry over vagueness.

September 23, 2006|Richard Simon and Julian E. Barnes | Times Staff Writers

WASHINGTON — Military defense lawyers assailed compromise legislation for interrogating and prosecuting terrorism suspects, contending Friday that proposed rules would prevent them from learning whether evidence used against their clients was obtained through coercion or torture.

At the same time, rights groups that initially endorsed the compromise between the Bush administration and key Senate Republicans expressed reservations, saying it appeared on closer reading to be vague and could give President Bush and future presidents too much latitude.

"It is worse than the system that was in place before," said Marine Maj. Michael Mori, a military defense lawyer. "It is not going to ensure there is a fair trial."

Congressional Republican leaders, nonetheless, plan to move the compromise military tribunal bill to a vote next week. They may tie the bill, which has support among a number of Democrats, to a more controversial measure authorizing Bush's once-secret warrantless surveillance program.

Legislation introduced by the Senate GOP leadership Friday would make it clear that the president, in some cases, has the authority under the Constitution to unilaterally order surveillance without a judge's approval.

Both the tribunal and surveillance measures are centerpieces of the security-focused agenda the GOP wants to highlight before the November election, which is expected to determine control of Congress.

Republicans, who were engaged in an intraparty fight over the tribunal legislation until the agreement was reached, appeared to be closing ranks.

But the measure faces additional scrutiny. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) called a hearing for Monday on a provision in the bill that would deny detainees the right to challenge their detention in court, known as the right of habeas corpus.

"It may be the only way some people can have their situation resolved in court," said retired Rear Adm. John Hutson, a former top Navy judge advocate general and member of the board of Human Rights First.

Although the rights group supported the compromise, the group raised questions Friday.

Army Maj. Tom Fleener, an attorney who represents a Yemeni man imprisoned at Guantanamo, said that under the proposed rules, "there is no way for the defendant to determine how the evidence was obtained. There is no way to find out how the witness was interrogated because the techniques are going to be classified."

The compromise leaves it up to military judges to determine whether evidence had been coerced and can be admitted.

Human rights groups also expressed concern about how the Bush administration could interpret the compromise language.

"The main concern is the legislation is ambiguous," said Alexandra Arriaga, director of government relations for Amnesty International USA. "It has language that can be interpreted in many ways. We want to be certain practices that have long been considered torture or cruel, inhumane or degrading are still prohibited."

Allies of Sen. John McCain (R-Ariz.), who helped broker the compromise, said the deal does not give the administration any more leeway to interpret U.S. obligations under the Geneva Convention than it already had.

But Christopher Anders, ACLU legislative counsel, said he worried that the administration would use the language to claim approval of tough methods.

"If this administration had a better track record of following the rule of law ... there wouldn't be so much worry," Anders said.

Surveillance legislation introduced Friday by Senate GOP leaders also drew criticism.

Civil liberties groups and privacy advocates said the legislation would unduly expand the government's power to monitor the e-mail and phone calls of American citizens and others in terrorism-related cases.

Critics also said it would mark a major departure from the 1978 Foreign Intelligence Surveillance Act that required U.S. officials to obtain court approval before launching secret domestic spying programs.

The bill includes a few new safeguards, including a requirement that the administration report to Congress every 180 days on surveillance activities. It also limits how long intercepted communications may be kept.

Specter "remains concerned about ensuring that there is judicial review of the terrorist surveillance program," said a Judiciary Committee aide who said the chairman was, nonetheless, "pleased the legislative process was moving forward."

Times staff writer Richard B. Schmitt contributed to this report.

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