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It may be the single most divisive issue in the looming gap between the rules the administration wants Congress to devise for its military commissions and those the Senate Armed Services Committee and its chairman, John Warner (R-Va.), want to establish. Indeed, the divide between the two sides on how to handle classified evidence � whether the Guant�namo Bay defendants should always be entitled to see it, at least in abridged form, or whether it can be withheld in the interests of national security � seems unbridgeable. “What is the point in having a trial if you don’t allow the defendant to see [all] the evidence?” says Cravath, Swaine & Moore partner Paul Saunders, a former Army JAG who wrote an amicus brief in Hamdan v Rumsfeld, the Supreme Court case that declared that Congress, not the administration, must write the rules for military commissions. “There’s no room for compromise; this is absolutely fundamental.” The Senate committee’s draft version dispenses with the issue of classified information in 12 lines, declaring that the rules already in effect under the Uniform Code of Military Justice should continue to be used. Those allow a military judge to authorize a redacted or summarized version of the information or simply stipulate to the facts. The White House draft bill includes more than two pages on the subject, but the safeguards it points to are hardly designed to instill confidence in the process, say JAG defense attorneys. The military judge can withhold evidence if it can “reasonably be expected” to prejudice national security, and withhold a redacted version if it would not be “an adequate substitute.” At the same time, however, under the White House bill, a military judge cannot exclude evidence from a defendant or remove the defendant from any part of the proceedings if it would “deprive the accused of a full and fair trial.” Whether Congress believes a defendant can be denied access to certain evidence and still have a “full and fair trial” remains to be seen. Military defense counsel, not unexpectedly, say evidence a defendant cannot see should not be used. But a senior Justice Department official last week countered, “If we shut off that possibility, then we’re going to make these prosecutions much more difficult in some of the most important cases.” T.R. Goldman can be contacted at [email protected]

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