Global Policy Forum

By Anne Plummer Flaherty

U.S. citizens suspected of terror ties might be detained indefinitely and barred from access to civilian courts under legislation proposed by the Bush administration, say legal experts reviewing an early version of the bill.

A 32-page draft measure is intended to authorize the Pentagon's tribunal system, established shortly after the 2001 terrorist attacks to detain and prosecute detainees captured in the war on terror. The tribunal system was thrown out last month by the Supreme Court.

Administration officials, who declined to comment on the draft, said the proposal was still under discussion and no final decisions had been made. Senior officials are expected to discuss a final proposal before the Senate Armed Services Committee next Wednesday.

According to the draft, the military would be allowed to detain all "enemy combatants" until hostilities cease. The bill defines enemy combatants as anyone "engaged in hostilities against the United States or its coalition partners who has committed an act that violates the law of war and this statute." Legal experts said Friday that such language is dangerously broad and could authorize the military to detain indefinitely U.S. citizens who had only tenuous ties to terror networks like al Qaeda.

"That's the big question ... the definition of who can be detained," said Martin Lederman, a law professor at Georgetown University who posted a copy of the bill to a Web blog. Scott L. Silliman, a retired Air Force Judge Advocate, said the broad definition of enemy combatants is alarming because a U.S. citizen loosely suspected of terror ties would lose access to a civilian court - and all the rights that come with it. Administration officials have said they want to establish a secret court to try enemy combatants that factor in realities of the battlefield and would protect classified information.

The administration's proposal, as considered at one point during discussions, would toss out several legal rights common in civilian and military courts, including barring hearsay evidence, guaranteeing "speedy trials" and granting a defendant access to evidence. The proposal also would allow defendants to be barred from their own trial and likely allow the submission of coerced testimony. Senior Republican lawmakers have said they were briefed on the general discussions and have some concerns but are awaiting a final proposal before commenting on specifics.

Attorney General Alberto Gonzales and Deputy Defense Secretary Gordon England are expected to discuss the proposal in an open hearing next Wednesday before the Senate Armed Services Committee. Military lawyers also are scheduled to testify Wednesday before the Senate Judiciary Committee. The legislation is the administration's response to a June 29 Supreme Court decision, which concluded the Pentagon could not prosecute military detainees using secret tribunals established soon after the Sept. 11, 2001, terrorist attacks. The court ruled the tribunals were not authorized by law and violated treaty obligations under the Geneva Conventions, which established many international laws for warfare.

The landmark court decision countered long-held assertions by the Bush administration that the president did not need permission from Congress to prosecute "enemy combatants" captured in the war on terror and that al Qaeda members were not subject to Geneva Convention protections because of their unconventional status.

"In a time of ongoing armed conflict, it is neither practicable nor appropriate for enemy combatants like al Qaeda terrorists to be tried like American citizens in federal courts or courts-martial," the proposal states. The draft proposal contends that an existing law - passed by the Senate last year after exhaustive negotiations between the White House and Sen. John McCain, R-Ariz. - that bans cruel, inhuman or degrading treatment should "fully satisfy" the nation's obligations under the Geneva Conventions.

Sen. John W. Warner, R-Va., chairman of the Armed Services Committee, said Friday he expects to take up the detainee legislation in September.