Detainees on Trial
Congress takes another crack at remaking military commissions.

Thursday, October 15, 2009

ONE OF THE first acts of President Obama after being sworn in was to suspend the military commissions at the U.S. Naval Base in Guantanamo Bay, Cuba, that were being used to prosecute high-level detainees, including alleged Sept. 11 mastermind Khalid Sheikh Mohammed.

The president was right to shelve the commissions, given that they lacked meaningful checks on executive excesses, contained meager protections for defendants and enjoyed no legitimacy in the international community.

Now Congress is taking another shot at crafting rules for military commissions. Its bill does a good job of ensuring fairness for detainees while giving the government a solid framework to prosecute alleged war criminals whom the government may not be able to try in traditional federal courts.

The Military Commissions Act of 2009, recently passed by the House and up for a vote as early as this week in the Senate, would forbid the use of detainee statements obtained through torture, coercion, or cruel, inhuman and degrading treatment. It would guarantee detainees military lawyers at government expense or give defendants the option of hiring civilian lawyers or relying on ones willing to work at no cost. A detainee facing a possible death sentence would be entitled to two attorneys at government expense. Detainees could attend all sessions, cross-examine government witnesses and present their own. They could not be forced to testify against their will. Hearsay testimony could be offered by either side but would have to be deemed reliable and relevant to be admitted.

The act deals sensibly with the challenges of handling classified information likely to play a role in any trial, providing the defense much more access than before. Defense lawyers, who would need "secret"-level security clearances, would be entitled to examine such evidence. If the government objected, it would have to supply a reasonable substitute or summary. If a judge concluded that the evidence was too sensitive to be shared with the defense, he or she could dismiss the case or drop charges linked to the evidence. The government could appeal immediately if a judge disagreed with its secrecy claim. A defendant found guilty by a military commission could appeal his conviction to a three-judge military review panel and then to the U.S. Court of Appeals for the D.C. Circuit.

The federal courts should be the preferred venue when trying terrorism suspects. But when those courts are not an option because the evidence against the suspect is strong but not admissible in a traditional court, the government must have a legitimate alternative to bring them to justice. The Military Commissions Act of 2009 creates such a vehicle and should be used to reconvene as soon as possible the prosecutions of Mr. Mohammed and other eligible detainees at Guantanamo.

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