[JURIST] US Sen. Lindsey Graham (R-SC) [official website] told reporters on Tuesday that the White House has changed its position on military commissions [DOD materials; JURIST news archive], and now favors an approach that would try suspected terrorist detainees under a system modeled more on the Uniform Code of Military Justice (UCMJ) [text]. Graham, the chairman of the Senate Armed Services Committee, called the latest proposal a "hybrid" between the military commissions established under Military Commission Order No. 1 [text] that the US Supreme Court in June ruled lacked proper legal authorization [JURIST report], and the courts-martial system under the UCMJ. The Bush administration has considered asking Congress to authorize the current system [JURIST report], a solution once backed by Graham [press release] and contemplated by the Supreme Court in Hamdan v. Rumsfeld [text]. The White House circulated a draft bill [JURIST report; PDF text] last week that among other things would allow military commissions to proceed against an accused "enemy combatant" without the defendant being present, if necessary to protect national security, a provision inconsistent with the UCMJ.
The UCMJ mandates a courts-martial system [Globalsecurity.org backgrounder] that provides defendants with fundamental trial rights similar to those enjoyed in US civilian trials. Defendants are guaranteed counsel and the right to a trial by jury, and the defendant is provided an opportunity to cross-examine witnesses and present evidence. Several administration lawyers have warned against a courts-martial system [JURIST report] to try terrorist suspects, arguing that the evidentiary requirements place severe burdens on the prosecution, but other DOJ lawyers said that the Military Rules of Evidence could be altered to admit reliable hearsay, among other things. AP has more.