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The War Over Detainee Rights

On Wednesday David Cloud and Sheryl Gay Stolberg of the New York Times reported the details of a draft of legislation proposed by the Bush administration to address the issue of detainee rights in the wake of the Supreme Court's Hamdan decision last month.

The 32-page memo (available in full as a pdf file here) was drafted by Acting Assistant Attorney General Steven G. Bradbury and tagged with a "close hold" designation - meaning the memo's circulation was to remain limited. Still, Cloud and Stolberg report the memo was leaked to the Times on Tuesday by "an official at an agency that is reviewing it."

A source within the military community suggested to me the memo was leaked to the Times so that it could be attacked in an effort to weaken support for it. There is a significant debate raging both in Congress - particularly the Senate - and between uniformed and civilian lawyers in the JAG Corps and the Pentagon whether to pursue a military commission/modified tribunal plan such as the one drafted by Bradbury, or the approach supported by Senators McCain and Graham which would model legal proceedings for suspected terrorists after those provided for a military courts-martial.

The Bradbury draft contains some important points worth highlighting. First, it takes on the heart of the SCOTUS Hamdan ruling by explicitly stating the Geneva Conventions "are not a source of judicially enforceable individual rights." In other words, terrorist suspects like Hamdan cannot get access to our court system based on a claim that their Geneva Convention rights have been violated.

Second, the Bradbury draft places a great deal of discretion in the hands of the tribunal judge. The draft stipulates that "statements obtained by the use of torture" are not permitted, but in most other instances evidence will be allowable if the judge deems it has "probative value." Sections 102-6 and 102-7 lay out the case for why this approach is preferable:

(6) The use of military commissions is particularly important because the conflict between the United States and international terrorist organizations, including al Qaeda, the Taliban, and associated forces generally makes other alternatives, such as the use of Federal courts or courts-martial, are impracticable. The terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment to the destruction of the United States and its people, to violation of the laws of war, and to the abuse of American legal processes. In a time of ongoing armed conflict, it is neither practicable nor appropriate for alien enemy combatants like al Qaeda terrorists to be tried like American citizens in Federal courts or courts-martial.

(7) Many procedures for courts martial would not be practicable in trying alien enemy combatants for whom this Act provides for trial by military commission. For instance, court-martial proceedings would in certain circumstances-

(A) require the Government to share classified information with the accused, even though members of al Qaeda cannot be trusted with our Nation's secrets and it would not be consistent with the national security of the United States to provide them with access to classified information;

(B) exclude the use of hearsay evidence determined to be probative and reliable, even though the hearsay statements from, for example, fellow terrorists are often the only evidence available in this conflict, given that terrorists rarely fight and declare their intentions openly but instead pursue terrorist objectives in secret conspiracies the objectives of which can often be discerned only or primarily through hearsay statements from collaborators; and

(C) specify speedy trials and technical rules for sworn and authenticated statements when, due to the exigencies of wartime, the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers nor can the United States divert members from the front lines and their duty stations to attend military commission proceedings.

This last point strikes me as absolutely essential. Obviously, we want to facilitate some sort of process for adjudicating cases of suspected terrorists, but it would be absolute insanity to establish such a high threshold so as to further burden our soldiers in the field.

President Bush will be making a choice between the two approaches in the very near future - perhaps as early as next week. As I mentioned earlier, my military source suggested that leaking of the Bradbury memo may be a deliberate attempt to try and influence Bush's decision by ginning up a negative reaction to the military commission approach. We'll have to see what happens, and what The Decider decides.