Wisdom on Detainees

Friday, July 14, 2006

SENATE TESTIMONY yesterday by the judge advocates general of the four military services was illuminating -- so illuminating, you wanted to weep that they hadn't been listened to four years ago or more.

The setting was the Armed Services Committee's opening hearing into how terrorists should face trial, following the Supreme Court decision that struck down the administration's scheme. Testimony from the leaders of the Army, Navy, Air Force and Marines' justice systems showed how foolish the administration was to sideline both Congress and the existing military justice system in crafting its plan for terrorism trials. Had the conversation that began yesterday taken place soon after the Sept. 11 attacks, many terrorists might today be serving prison sentences instead of being warehoused -- and some innocent men being warehoused might be free.

Not one of the six active-duty and retired judge advocates general who testified yesterday would endorse the administration's request that Congress simply ratify the military commissions it had set up unilaterally. All emphasized, to different degrees, that it was a mistake not to incorporate more of the normal rules of military justice in creating the commissions. Some argued, as we have, that Congress should start with the court-martial system and amend it as needed. Others want to incorporate elements of President Bush's commissions, of courts-martial and of international war crimes tribunals. None, however, contended that the system the administration set up offers an appropriate balance between wartime needs and American values.

At the same time, every witness also agreed that the system of courts-martial, as normally used to try U.S. service personnel, can't be used for alleged terrorists without changes. The rules must adapt to accommodate defendants who are captured in war, not arrested, and who may be detained for long periods before trial, they said. The strict requirements of the rules of evidence applied in a general court-martial also would need tweaking. But as a former Navy JAG, Rear Adm. John Hutson, said, "Those modifications should be very narrow and very specific and well articulated and based on absolute necessity."

Finally, the judge advocates general all agreed that detainees can be treated humanely without damaging this country's war-fighting ability. In other words: Common Article 3 of the Geneva Conventions, which mandates humane treatment and which the Supreme Court applied to the conflict with al-Qaeda, poses no obstacle to the military. "In fact," said Adm. Hutson, "I'd turn it around and say I don't think we can win the war unless we live within Common Article 3."

The challenge for Congress is to rigorously identify and define the necessary modifications to the military justice system so that trials can, at long last, begin. Committee members appeared to understand the gravity of the task and, unlike some commentators and legislators, key members did not seem in a hurry to undo the Supreme Court's ruling and rubber-stamp the administration's plans. That's good. The goal is bipartisan legislation that will authorize fair trials that honor American values while accommodating the unusual nature of this conflict.

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