"A fundamentally fair trial"
The Washington Post reports on the maladministration efforts to side-step the Hamdan decision and reinstitute the military commissions, with even more expansive provisions, here.
Amongst the other provisions, we have (from the article):
They objected in particular to the provision allowing defendants to be tried in absentia, said the official, who spoke on the condition of anonymity because he was not authorized to describe the deliberations. Another source in contact with top military lawyers said, "Their initial impression is that the draft was unacceptable and sloppy." The source added that "it did not have enough due-process rights" and could further tarnish America's image.But here's where they're coming from:
The military lawyers nonetheless supported extending the jurisdiction of the commissions to cover those accused of joining or associating with terrorist groups engaged in anti-U.S. hostilities, and of committing or aiding hostile acts by such groups, whether or not they are part of al-Qaeda, two U.S. officials said.
That language gives the commissions broader reach than anticipated in a November 2001 executive order from President Bush that focused only on members of al-Qaeda, those who commit international terrorist acts and those who harbor such individuals.
But Kris Kobach, a senior Justice Department lawyer in Bush's first term who now teaches at the University of Missouri at Kansas City, said he believes that the draft strikes an appropriate balance between "a fundamentally fair trial" and "the ability to protect the effectiveness of U.S. military and intelligence assets."Pardon me if I missed it in law school, but where is the provision in the Bill of Rights that specifices that one is entitled to a "fundamentally fair trial" except when that gets in the way of military expediency and efficiency?
Then we have the further problem that there's little evidence to show "the effectiveness of U.S. military and intelligence assets" in the first place. What are we getting for our money ... and our liberties?
Then there's this gem:
Administration officials have said that the exceptional trial procedures are warranted because the fight against terrorism requires heavy reliance on classified information or on evidence obtained from a defendant's collaborators, which cannot be shared with the accused. The draft legislation cites the goal of ensuring fair treatment without unduly diverting military personnel from wartime assignments to present evidence in trials."We doan need no steenkin' evidence...."
Update: Should have included this choice stuff too:
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.Pretty heady stuff ... if your name is Torquemada or Stalin.
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.
Update 2: Gonzales gets more specific on what he wants:
The Bush administration wants a new system for trying terror suspects to let prosecutors withhold classified evidence from the accused, Attorney General Alberto Gonzales said Wednesday, holding to a hard line on detainee policy despite concerns by senators and military lawyers.So if we manage to "coerce" some story out of someone that implicates a detainee, we can use it, and we don't even have to tell the detainee we did so....
"We must not share with captured terrorists the highly sensitive intelligence that may be relevant to military commission proceedings," Gonzales told the Senate Armed Services Committee.
Gonzales said detainee legislation also should permit hearsay and coerced testimony, if deemed "reliable" by a judge. These approaches are not permitted under the Uniform Code of Military Justice, or UCMJ, which is used for military courts-martial.
"The new rules are that there are no rules..."