Military Tribunals

The link is to an article on Slate that is yelping about the Roberts nomination for the Supremes. [H/T CQ] For some reason Emily Bazelon seems to be implying that the Roberts nomination is a quid pro quo from Bush to put Roberts on the Bench. You can look at the CQ link for that bit.

I'm more interested though in the statements related to military tribunals that Bazelon takes.

This tribunal isn't like the courts-martial that are used for prisoners of war. It goes by rules that cut back the rights of defendants even more drastically than the tribunal that the United States has helped establish in Iraq to try Saddam Hussein has. Hamdan has no right to be present at his trial. Unsworn statements, rather than live testimony, can be presented as evidence against him. The presumption of innocence can be taken away from him at any time; so can his right not to testify to avoid self-incrimination. If Hamdan is convicted, he can be sentenced to death.

The implicaton sounds like to me as if there are no rules at all. I did some searching and found this page at FindLaw that has all sorts of links about tribunals.

I also located the DOD Military Commission Order No. 1. My understanding is that these are the rules for these upcoming commissions. The procedures seem to contradict some of Bazelon's implications.

5. PROCEDURES ACCORDED THE ACCUSED
The following procedures shall apply with respect to the Accused:
DoD MCO No. 1, March 21, 2002
A. The Prosecution shall furnish to the Accused, sufficiently in advance of trial to
prepare a defense, a copy of the charges in English and, if appropriate, in another
language that the Accused understands.
B. The Accused shall be presumed innocent until proven guilty.
C. A Commission member shall vote for a finding of Guilty as to an offense if and only
if that member is convinced beyond a reasonable doubt, based on the evidence admitted
at trial, that the Accused is guilty of the offense.
D. At least one Detailed Defense Counsel shall be made available to the Accused
sufficiently in advance of trial to prepare a defense and until any findings and sentence
become final in accordance with Section 6(H)(2).
E. The Prosecution shall provide the Defense with access to evidence the Prosecution
intends to introduce at trial and with access to evidence known to the Prosecution that
tends to exculpate the Accused. Such access shall be consistent with Section 6(D)(5) and
subject to Section 9.
F.The Accused shall not be required to testify during trial. A Commission shall draw
no adverse inference from an Accused's decision not to testify. This subsection shall not
preclude admission of evidence of prior statements or conduct of the Accused.
G. If the Accused so elects, the Accused may testify at trial on the Accused's own behalf
and shall then be subject to cross-examination.
H. The Accused may obtain witnesses and documents for the Accused's defense, to the
extent necessary and reasonably available as determined by the Presiding Officer. Such
access shall be consistent with the requirements of Section 6(D)(5) and subject to Section
9. The Appointing Authority shall order that such investigative or other resources be
made available to the Defense as the Appointing Authority deems necessary for a full and
fair trial.
I.The Accused may have Defense Counsel present evidence at trial in the Accused's
defense and cross-examine each witness presented by the Prosecution who appears before
the Commission.
J.The Prosecution shall ensure that the substance of the charges, the proceedings, and
any documentary evidence are provided in English and, if appropriate, in another
language that the Accused understands. The Appointing Authority may appoint one or
more interpreters to assist the Defense, as necessary.
K. The Accused may be present at every stage of the trial before the Commission,
consistent with Section 6(B)(3), unless the Accused engages in disruptive conduct thatjustifies exclusion by the Presiding Officer. Detailed Defense Counsel may not be
excluded from any trial proceeding or portion thereof.
L. Except by order of the Commission for good cause shown, the Prosecution shall
provide the Defense with access before sentencing proceedings to evidence the
Prosecution intends to present in such proceedings. Such access shall be consistent with Section 6(D)(5) and subject to Section 9.
M. The Accused may make a statement during sentencing proceedings.
N. The Accused may have Defense Counsel submit evidence to the Commission during
sentencing proceedings.
O. The Accused shall be afforded a trial open to the public (except proceedings closed
by the Presiding Officer), consistent with Section 6(B).
P. The Accused shall not again be tried by any Commission for a charge once a
Commission's finding on that charge becomes final in accordance with Section 6(H)(2).

Well, you get the picture. Read the procedures though. To me it doesn't sound like the screaming travesty of justice that it has constantly been made out to be.

UPDATE:
Been looking further at Bazelon's analysis of the tribunal method.

Their claim is a fairly limited one—not that Geneva gives the detainees a ticket to challenge the conditions of confinement or to sue for money damages, but that it sets the parameters for their trials. Since 1804, it's been a basic principle of statutory interpretation—called, of all things, the Charming Betsy principle—that federal laws authorizing the government to do something have to be read so that they're consistent with international law.

Problem with the section highlighted. Here is what the linked Amicus Curiae actually says:

Specifically, as further set forth herein, under the "Charming Betsy" canon - requiring courts, "whenever possible," to construe federal law so that its application "will not violate international law," In re Application to Enforce an Administrative Subpoena of the CFTC, 738 F.2d 487, (D.C. Cir 1984)...

Consistency is not the same thing as "will not violate." Could be that making the assumption that they are the same is truly poor logic. Since the finding was unanimous, I would be willing to bet that they believed that the Geneva conventions were not being violated. The Amicus Curiae itself argues that the Geneva convention on the treatment of Prisoners of War is relevant. I believe that argument has already been found false.

After all of the flaws in Bazelon's argument, I think her conclusion that Roberts is flawed as a candidate, is itself flawed.