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When Miranda Met Osama

By Brendan Miniter

WASHINGTON--At the start of the congressional debate over military tribunals for terrorists, I offered House Armed Services Committee Chairman Duncan Hunter a prediction: Sen. John McCain would be the biggest obstacle to enacting rules to effectively prosecute al Qaeda operatives.

It was near the end of an hourlong interview, at the end of a hot August day. But Mr. Hunter was obviously piqued by the assertion that his friend and a man who was tortured at the hands of North Vietnamese captors would do anything to make it harder to win the war on terror. Sitting up, Mr. Hunter answered the assertion: "Well, I don't agree with that."

As we sat in his spacious office with its view of the Capitol dome, the chairman had been making the case for a hardnosed approach to national security and, somewhat surprisingly, giving a frank and at times critical assessment of the war on terror and the state of the U.S. military. In the past, Mr. Hunter has clashed with the Bush administration over defense spending and intelligence reorganization. As a combat veteran of Vietnam and father of a U.S. Marine lieutenant who fought in the battle for Fallujah, Iraq, Mr. Hunter understands both the anxiety of staying the course and also the danger involved in losing a war by undercutting the troops fighting it.

He was quick to point out his belief that the reason al Qaeda hasn't struck again on U.S. soil is that the response to 9/11 involved a lot more than bombing terrorist training camps: "We didn't just sit back in fortress America." By liberating Afghanistan and Iraq and pursuing a global war against al Qaeda and its affiliates, he said, "we've kept them off balance."

He also noted that it's impossible to know how many would-be terrorists (or those who would harbor them) have been deterred by the administration's aggressive foreign policies. Yet he fears the U.S. risks losing its momentum if it doesn't soon move to counter the changing face of al Qaeda as well as rogue regimes. In the budget-driven politics of Washington, that means spending a large pile of money on programs that some members of Congress have worked long and hard to kill, such as missile defense. It also means spending billions to "reset" equipment chewed up in Iraq and--in Mr. Hunter's view--$100 billion in the coming years to modernize the force with new military technology.

These days, it's not a lack of funds that overhangs political debates inside the Beltway. It's a lack of resolve among some members to support tough-minded war policies. That's evident now in the debate over terrorist tribunals.

To keep up war momentum, the U.S. now needs to put terrorists on trial. And to do that Mr. Hunter supports enacting rules, requested by the president, that would allow military tribunals to try and convict terrorists using hearsay evidence and to use classified information, even if it is withheld from the defendant. The goal, in Mr. Hunter's view, is to provide a "modicum of fairness," while also taking into account battlefield realities. Soldiers aren't police officers. In the midst of a firefight, they can't be expected to collect forensic evidence for a criminal trial.

Last month, as Washington was settling down for Congress's summer recess, there was reason to believe that President Bush would prevail with his proposal for military tribunals. Most Republicans in Congress support aggressive interrogations of suspected terrorist leaders and tough but fair military trials. And many Democrats, determined to win control of Congress in November, weren't raising sharp objections.

But that was before Sen. McCain, along with Sens. Lindsey Graham and John Warner, turned a debate over rules to govern interrogations and military tribunals into a shouting match over "torturing" detainees. It's notable that, unlike Abu Ghraib, this isn't a controversy over documented abuses. Terrorists in U.S. custody have been aggressively interrogated, but no evidence has surfaced to indicate that they have been tortured. And in its proposed legislation, the White House wants to ratify, not expand, its current terrorist interrogation policies and its planned terrorist tribunals.

One story line the media have pursued involves a letter that was signed by four senior judge advocate generals supporting part of the White House's proposal. These JAG officers had previously opposed the White House's plans, so shortly after the letter was released, some in Washington insinuated that the JAGs had been browbeaten into signing the letter. White House press secretary Tony Snow wasted no time in shooting that down on Thursday, telling reporters, "As Col. Lindsey Graham, himself a JAG, will inform you, you don't coerce JAGs."

When I met with Mr. Hunter, it was impossible to foresee the kerfuffle over a letter that had not yet been written. But the chairman pointed out that it was a JAG (though not one of the officers who signed the letter), who persuaded him to support the president's legislation. In setting up terrorist tribunals the administration has two options. It can adopt the Uniform Code of Military Justice, the same body of law used to court-martial soldiers, in its entirety or with certain exceptions. This is the path Sens. Graham and McCain want the administration to take. Or it can write a new set of laws specifically designed to handle unlawful combatants.

Before making up his mind on which direction the administration should take, Mr. Hunter asked military officials testifying before his committee a very simple question: If terrorists apprehended on the battlefield are to be tried under the UCMJ, when will the right to an attorney kick in? The answer, Mr. Hunter learned, is about when soldiers have a suspected al Qaeda operative "spread eagled over the hood" of a HMVEE. It was clear to him then that the legal code for military tribunals "has to be something custom made for the war on terror."

This week the House is expected to pass the president's bill, which was pushed through committee and has been shepherded to the floor by Mr. Hunter. That will likely set up a battle with the Senate, probably sometime after Election Day.

And what of Sen. McCain? "I don't think he wants a system that can't be used to expeditiously prosecute these guys," Mr. Hunter said before indicating where he thinks a compromise can be struck. "You put together this new body of law and rules, and that's going to include a lot of provisions that are very similar to the UCMJ, but that are actually similar to lots of bodies of law, right? Basic stuff like the right to have counsel, etc., etc. If they want to say that's from the UCMJ, that's good; that's fine with us. I don't care about the optics. What I care about is the practical construct of this." The bottom line, he said, is that "you can't adopt the UCMJ in total."

Brendan Miniter is assistant editor of OpinionJournal.com. His column appears Tuesdays.

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