On Prosecuting Detainees

By R. Jeffrey Smith
Washington Post Staff Writer
Friday, July 28, 2006

The Bush administration likes to keep its work under wraps until it's finished, but that proved impossible with a draft bill detailing procedures the administration is considering for bringing to trial those it captures in the war on terrorism, including some stark diversions from regular trial procedures.

A copy of the draft, obtained this week by The Washington Post and others, explains how the government would create commissions of U.S. military personnel who could impose a penalty of life imprisonment or death based on evidence never disclosed to the accused. Military judges could also exclude defendants from their trials whenever "necessary to protect the national security."

The copy, which is paraphrased below, is marked "For Discussion Purposes Only" and did not reflect the comments of uniformed military lawyers. Those lawyers have privately criticized the Bush administration's policies on detainees, arguing that Washington should set higher standards to ensure that others treat captured U.S. soldiers fairly.

Their views are being solicited only now. But even after the administration reaches accord, the trial procedures still must pass a gantlet of senators from both parties who have criticized the administration for mistreating detainees. And the Supreme Court, which last month declared an earlier plan for the trials illegal, may eventually weigh in again if defendants challenge the new "military commissions" and appeal the verdicts.


The draft states that using the federal courts or existing military court-martial procedures to try suspects in the war on terrorism -- described formally as "alien enemy combatants" -- is "impracticable" because they are committed to destroying the country and abusing its legal processes. Routine trial procedures would not work, it states, because suspects cannot be given access to classified information or tried speedily. Service members involved in collecting evidence cannot be diverted from the battlefield to attend trials, and hearsay evidence from "fellow terrorists" is often needed to establish guilt.

Formation of Military Commissions

The commissions are to be established under existing presidential authorities but appointed by the Secretary of Defense or his designees. The jurors will be any commissioned, active-duty military officers considered qualified because of "age, education, training, experience, length of service, and judicial temperament." The head of each commission will be a military officer with legal credentials.

Covered Crimes and Persons

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