Terror Trials Worry Pentagon Lawyers

Rear Adm. Bruce E. MacDonald, the Judge Advocate General of the U.S. Navy, left, confers with Maj. Gen. Charles J. Dunlap, Jr., Deputy Judge Advocate General of the Air Force, right, during a break in their testimony at their House Armed Services Committee hearing on Capitol Hill Thursday, Sept. 7, 2006 in Washington. (AP Photo/Charles Dharapak)
AP Photo
The Pentagon's top uniformed lawyers are taking issue with a key part of a White House plan to prosecute terrorism detainees, telling Congress that limiting the suspects' access to evidence could violate treaty obligations.

Their testimony to a House committee on Thursday marked the latest instance in which military lawyers have publicly challenged Bush administration proposals to keep some evidence — such as classified information — from accused terrorists. In the past, some military officials have expressed concerns that if the United States adopts such standards, captured American troops might be treated the same way.

The lawyers' testimony contrasted with the panel chairman's assertion that the United States must take a harder line when prosecuting terrorists.

Rep. Duncan Hunter, who heads the House Armed Services Committee, said at the hearing that any military commission established to prosecute terrorists must allow the government to protect intelligence sources. In saying so, the California Republican aligned himself with the White House position.

"While we need to provide basic fairness in our prosecutions. We must preserve the ability of our war fighters to operate effectively on the battlefield," Hunter said.

Hunter presented the military lawyers with various scenarios in which it might be necessary to withhold evidence from the accused if it would expose classified information. But the service's top lawyers said other alternatives must be explored — or the case dropped.

"I believe the accused should see that evidence," said Maj. Gen. Scott Black, the Army's Judge Advocate General.

Black and the other lawyers said such an allowance was a fundamental right in other court systems and would meet requirements under the Geneva Conventions.

But Hunter suggested that such a requirement could hamper prosecutions.

"Some of these acts of complicity in terrorist acts are very small pieces . . . and you don't have a lot of evidence," he said. The chairman repeated a scenario where the only piece of evidence would expose the identity of a secret agent and asked whether it would make sense to drop the case entirely.

"You get to the end of the trail, then yes sir, you do," Black responded.

The hearing came a day after Mr. Bush acknowledged for the first time that the CIA had secret prisons overseas and defended the practice of tough interrogations to force terrorists to reveal plots to attack the United States and its allies.