State of the Art

Following the Supreme Court's Hamdan decision, the administration has been working to propose an alternate arrangement for military tribunals. According to the Washington Post, they've come up with a plan that is truly 'state of the art' jurisprudence:

A draft Bush administration plan for special military courts seeks to expand the reach and authority of such "commissions" to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal.

The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court's jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said.

That would be 'state of the art' for the 16th century, of course.

The draft proposed legislation, set to be discussed at two Senate hearings today, is controversial inside and outside the administration because defendants would be denied many protections guaranteed by the civilian and traditional military criminal justice systems.

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.

Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

Having now had its innovative legal interpretations regarding Guantanamo prisoners rebuffed more than once, it would be logical to think that the administration might be trying to back away from its previous approach. But if you think that, you just haven't been paying attention.

The plan calls for commissions of five military officers appointed by the defense secretary to try defendants for any of 25 listed crimes. It gives the secretary the unilateral right to "specify other violations of the laws of war that may be tried by military commission." The secretary would be empowered to prescribe detailed procedures for carrying out the trials, including "modes of proof" and the use of hearsay evidence.

Why am I not calm about the idea that Donald Rumsfeld could, at his discretion, specify violations which could be tried, secretly, by military commissions, at which I, if charged, wouldn't have to be present while they used hearsay against me? I guess then I can be guilty of crimes I know I know, crimes I know I don't know, and crimes I don't know I don't know.

Unlike the international war crimes tribunals for Rwanda and the former Yugoslavia, the commissions could rely on hearsay as the basis for a conviction. Unlike routine military courts-martial, in which prosecutors must overcome several hurdles to use such evidence, the draft legislation would put the burden on the defense team to block its use.

The admission of hearsay is a serious problem, said Tom Malinowski, director of the Washington office of Human Rights Watch, because defendants might not know if it was gained through torture and would have difficulty challenging it on that basis. Nothing in the draft law prohibits using evidence obtained through cruel, inhumane and degrading treatment that falls short of torture, Malinowski said.

The U.S. official countered that a military judge "would look hard" at the origins of such evidence and that defendants would have to count on "the trustworthiness of the system."

Didn't there used to be a country that was founded on the idea that it wasn't a good idea to just count on "the trustworthiness of the system", and where there was a complex system of checks-and-balances to restrain governmental power in order protect individual liberty? Or did I just dream that?