Aug. 2, 2006 – Forced by the US Supreme Court to reconsider its plans for "trying" some captives held at GuantÃ¡namo Bay, the Bush administration turned to the Senate Armed Services Committee today with its first attempt to push a tribunal system through Congress.
In a 32-page draft bill marked "For Discussion Purposes Only," the White House challenges the high courtâ€™s recent ruling that struck down the administrationâ€™s military tribunals. The document also lays out a plan to create tribunals that could impose a penalty of life imprisonment or death based on evidence never disclosed to the accused.
On June 29, the Supreme Court sent the administration a stern rebuke when it ruled the president does not have sole authority to determine how suspected terrorists are tried. The courtâ€™s 5â€“3 decision declared, in essence, that the Bush administration had overreached and must either use time-honored court-martial rules or seek congressional approval of a tribunal system.
The draft bill indicates that the administration is choosing the latter approach. Administration officials declined to comment about the draft to The NewStandard,
The military commissions set up to try GuantÃ¡namo detainees were originally adopted by presidential order on November 13, 2001. To date, not a single full trial has taken place, partially because of a court challenge brought by Salim Ahmed Hamdan, the first GuantÃ¡namo detainee who was scheduled to be tried before a military tribunal. Hamdanâ€™s challenge led to the Supreme Court ruling against the tribunals.
The right of the accused to confront evidence against him is indisputably one of "the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the Uniform Code of Military Justice itself."
Part of the Supreme Courtâ€™s objection to the military tribunals as designed by the Bush administration involved the systematic withholding of evidence from the defendant. In the courtâ€™s dominant opinion, Justice John Paul Stevens wrote that any confrontation "rights" could be eviscerated under the tribunal system at the direction of a single individual.
The Bush administrationâ€™s draft proposal for a new, congressionally approved tribunal system would give the Secretary of Defense the power to decide which evidence the defense could have access to.
In testimony before the Senate Armed Services Committee last week, Neal Katyal, co-counsel for Hamdan, argued that the right of the accused to confront evidence against him is indisputably one of "the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the Uniform Code of Military Justice itself."
The administrationâ€™s draft bill rejects established court-martial proceedings on a number of other grounds, including the requirement for speedy trials. Speedy trials are impractical, the bill states, "due to the exigencies of wartime" and the inability of armed forces to gather evidence on the battlefield.
Lieutenant Commander Charles Swift, Hamdanâ€™s Navy-assigned co-counsel, called the administrationâ€™s strategy to modify the Uniform Military Code of Military Justice, a "bumper sticker slogan." In an interview with The NewStandard, he explained that courts martial were designed knowing that military people canâ€™t "police the battlefield" the way they might a stateside crime scene.
The administration proposes that second-hand testimony about a defendantâ€™s statements be admissible.
"Ironically, that doesnâ€™t seem to have held up any prosecutions at Haditha or any of the other prosecutions in Iraq," Swift said, referring to the site of a massacre for which US Marines stand accused of killing 23 Iraqi civilians. "If you believe thatâ€¦ then we need to take away all those rights from the Marines and the Army people as well, because [the military] wonâ€™t be able to prosecute [those cases]."
Another controversial element of the White Houseâ€™s proposed legislation is the issue of using hearsay as evidence. The administration proposes that second-hand testimony about a defendantâ€™s statements be admissible at the discretion of the military lawyer presiding over the commission.
"Hearsay statements fromâ€¦ fellow terrorists are often the only evidence available in this conflict," the legislation states, "given that terrorists rarely fight and declare their intention openly but instead pursue terrorist objectives in secret conspiracies, the objectives of which can often be discerned only or primarily through hearsay statements from collaborators."
But Swift argues hearsay rules exist to protect peoplesâ€™ fundamental right to confront the witnesses against them and establish whether the information was obtained under coercion.
Mocking the administrationâ€™s rationale, Swift questions the relevance of hearsay information. "I guess I could write on napkins that youâ€™re guilty of war crimes and throw them out onto a battlefield and the administration would say thatâ€™s good enough. For a court to find beyond a reasonable doubt, they canâ€™t be relying on rumor and innuendo which is what hearsay is designed to protect against."
Swift says the administrationâ€™s draft bill is an attempt to dress up and repackage its original plans. "Itâ€™s really not listening to [the Supreme Court ruling] and is very shortsighted. Itâ€™s not going to get us where we want to go."