A Flawed Proposal

Saturday, July 29, 2006

THE BUSH administration's draft bill to authorize military tribunals to try accused terrorists, which was leaked in Washington this week, is still evidently a work in progress. It nevertheless illuminates the administration's thinking about how to respond to the Supreme Court's decision striking down its previous trial system. The draft has some significant positive elements and some terrible elements. Its fundamental problem, however, is that it does not address the flaw at the core of the administration's strategy for putting terrorists on trial: It still seeks to create a wholly new trial mechanism rather than adapting the one America uses every day to the unique and challenging circumstances of prosecutions in this war.

The good news in the bill is that it would finally require that the trials, which are called military commissions, be conducted by genuinely independent tribunals, headed by military judges with a full complement of officers to act as jurors. These tribunals would be better insulated from command influence than the current commissions. In this important respect, they would be more solidly grounded in the rules and practices of courts-martial.

On the bad side, the draft would appear to authorize both the detention of American citizens as enemy combatants and their trial before these commissions -- something even President Bush's military order forbade. What's more, the draft has some of the same problems as the president's order. While some special rules to protect classified information are necessary, this proposal gives broad and imprecise authority to close commission hearings and even to exclude the defendants from them. At the same time, it gives little guidance about what kind of summary of classified material a defendant must receive. While it prohibits the use of evidence obtained by torture, it does not prohibit the introduction of other coerced statements if they are deemed reliable and probative. The draft appears to give the executive branch some authority to define crimes triable by commission. The appeals process is still defective. And the bill seems to ratify the president's authority to conduct commissions outside of its terms.

The problem lies in the concept itself. The proposed bill's findings list three reasons why trials by courts-martial would be impracticable: the need to protect classified information; the need for flexibility on the rules of evidence; and the need to avoid court-martial rules that make sense only in the traditional criminal arena. All of these concerns could be remedied by adjusting the rules for courts-martial. None justifies jettisoning that time-proven, respected system and creating a new one. If the administration comes to Congress with a bill similar to this draft, it should not be the starting point for the legislature.

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