Friday, Oct 06, 2006
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Graham thinks terror trial bill fatally flawed

S.C. senator says denying defendants right to see evidence against them is wrong

By JAMES ROSEN
jrosen@mcclatchydc.com
SENECA — U.S. Sen. Lindsey Graham says he’s confident the Senate will reject President Bush’s plan to try accused terrorists without letting them see classified evidence against them.

Graham, a military lawyer and a colonel in the Air Force Reserve, read the White House bill late Thursday on a flight from Washington to Greenville. He pored through the 86-page document until, on page 34, he reached a clause that would prohibit defense lawyers from sharing classified information with defendants they represent. He marked it with a red pen.

"That’s the killer," the S.C. Republican said. "I fell over when I read it."

Graham said he supports 90 percent of the bill, which Bush sent to Congress on Wednesday. But "I don’t feel good about telling someone — no matter who they are — ‘We’re going to execute you next week, but I’m sorry, we can’t tell you why.’"

"It’s a bridge too far, and it’s not necessary," Graham said. "It will result in putting the (military) commissions in legal jeopardy and eroding our standing in the world community."

Graham, 51, said every general and admiral at the top of the country’s military justice system agrees that classified information can be shared with accused terrorists without jeopardizing national security.

"I believe the accused should see that evidence," Maj. Gen. Scott Black, the judge advocate general of the Army, told the House Armed Services Committee on Thursday.

Senate Majority Leader Bill Frist, R-Tenn., has given the Armed Services Committee until Tuesday to produce a bill, Graham said. The panel’s chairman, Sen. John Warner of Virginia, and Sen. John McCain share Graham’s view on the handling of classified evidence, setting up a possible clash in the Senate.

Graham said Frist has vowed to bring Bush’s bill directly to the Senate floor Tuesday. Graham said he agrees with Frist that Congress must act soon so terrorist trials can begin at the U.S. military prison in Guantanamo Bay, Cuba.

Bush called on lawmakers to pass his tribunals measure quickly so detainees can be tried. The president increased the political pressure by disclosing that 14 senior al-Qaida members, including the alleged mastermind of the Sept. 11, 2001, attacks, were being sent to Guantanamo Bay from secret CIA prisons overseas.

The U.S. Supreme Court ruled in June that the Bush administration had exceeded its authority in establishing military tribunals without congressional action, prompting the need for legislation.

The case was brought by lawyers for Salim Ahmed Hamdan, a Guantanamo detainee who had been a chauffeur for Osama bin Laden.

"The Hamdan decision has reinforced our need to ensure that military commissions are reflective of American values such as due process and the rule of law," Gen. Black, the head of the Army’s legal apparatus, testified Thursday.

Senior lawyers at the White House, the Justice Department and the Pentagon argue that allowing terrorists to see classified evidence could expose how the U.S. has pursued al-Qaida and would put informants within the terror network in danger. But Graham said he’s certain the Supreme Court would reject a law that denies accused terrorists access to classified evidence against them.

"It would be a tragedy to take one of the masterminds of 9/11, hold them accountable, only to have the case rejected by the Supreme Court for no good reason," Graham said.

"I’m frustrated when people say we’re trying to give terrorists classified information," he said. "Well, that’s garbage. We’re going to protect our classified information, and we’re going to protect our methods and sources."

Graham said that if his differences with the White House cannot be bridged, he is prepared to push an amendment giving accused terrorists access to classified evidence against them.

"I think I will draft an amendment that will get majority support in the Senate, and there will be plenty of Republicans voting for it," Graham said. "I’m just predicting that we win. I don’t know by what margin."

The House is set to take up tribunals legislation the week of Sept. 18.

Air Force Col. Morris Davis, who would run the Guantanamo trials, said accused terrorists will get fair trials, and his corps of lawyers will work with whatever legislation Congress passes.

Rosen covers Washington for McClatchy newspapers in South Carolina.