Justice After Guantanamo
The White House still thinks the end justifies the means in trying suspected terrorists
The Los Angeles Times
August 4, 2006
Thanks to pressure from military lawyers and Republican lawmakers with experience in the armed forces, the Bush administration seems to have abandoned its position that Congress should simply rubber-stamp whatever procedures the president deems sufficient to try suspected terrorists at Guantanamo.
New draft legislation to bring the military commissions established by the administration into compliance with a Supreme Court decision borrows heavily from the Uniform Code of Military Justice.
That's the good news. The bad news is that on some issues - particularly the use of hearsay and evidence obtained by coercive or inhumane interrogation - the administration still clings to the notion that the end justifies the means.
Fortunately, Republicans such as Sens. John McCain of Arizona, a onetime Vietnam prisoner of war and torture victim, and Lindsey Graham of South Carolina, a military lawyer, put the administration on notice this week that, if it cuts too many corners in its proposals for military tribunals, Congress will push back - not out of a soft-hearted solicitude for enemies of this country but because mistreatment of prisoners held by the United States could come back to haunt members of the U.S. military.
In ruling in June that President Bush's rules for military commissions were illegal, the Supreme Court did more than ask Congress to add its approval to Bush's proposals. The court made it clear that, under the Geneva Convention, detainees must be tried by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
The court didn't insist that every clause of the Uniform Code of Military Justice apply to detainees. But it warned that any departure from rules used in courts-martial would have to be "tailored to the exigency that necessitates it." To ensure that the court doesn't again force Congress to return to the drawing board, procedures for military commissions should hew closely to court-martial rules. That means defendants should be able to attend their trials and see the evidence against them. It also means that military judges shouldn't be allowed to admit evidence obtained through coercion or what the Geneva Convention calls "humiliating and degrading treatment."
Here the administration persists in playing word games. Asked by McCain whether statements elicited by "illegal, inhumane treatment" should be admissible, Atty. Gen. Alberto R. Gonzales paused 15 seconds and then replied: "I can foresee a situation where, depending on the definition, I would say no, but depending on your definition of something as degrading, such as insults or something like that, I would say that information should still come in."
Despite the embarrassment to the U.S. caused by abuses at Abu Ghraib and reports of tactics such as "waterboarding," the administration seems oblivious to the harm the United States does to itself by weakening its own commitment to due process and fair play. As McCain put it: "We must remain a nation that is different from, and above, our enemies."