Military Tribunals Debate Begins

The political games have started, and there are some surprises, but mostly exactly what was expected.

Yesterday, Deputy Defense Secretary Gordon England issued a memorandum to the armed forces explaining that the Supreme Court, "as a matter of law," had found that a Geneva provision known as Common Article 3, listing several prisoner safeguards, applied to the conflict with al Qaeda. He instructed military personnel to comply with Common Article 3 -- but then asserted "it is my understanding" that existing interrogation practices and other prisoner policies already do so. He gave subordinates three weeks to review their procedures to ensure they comply with the Geneva provision, which bars not only torture, but also "outrages upon personal dignity, in particular, humiliating and degrading treatment."

White House spokesman Tony Snow said, "It is not really a reversal of policy. Humane treatment has always been the standard, and that is something that they followed at Guantanamo."

The England memorandum affects only the Defense Department, leaving unclear what safeguards apply to prisoners held by other agencies, such as the Central Intelligence Agency.

I suppose that the "humane treatment" that Snow talks about is really questionable. If the protections are supposed to be meeting those of common Article 3 of the Geneva Convention, some of the activities for acquiring information are suspect. Though there isn't much indication that these took place at GITMO.

"The most expeditious way to do it would be to essentially ratify the process that's already in place with the military commissions," said Daniel Dell'Orto, the Defense Department's principal deputy general counsel.

But some Republicans joined Democrats in asserting that the Supreme Court ruling demanded more. South Carolina Sen. Lindsey Graham, a Republican and an Air Force Reserve judge, said the starting point shouldn't be the military-commission regulations drafted internally by the Pentagon general counsel, but rather the Uniform Code of Military Justice, with changes regarding evidence and procedures based on specific national-security needs.

"If you'll adopt that attitude and that approach, we can get a product not only that will pass court muster, but the nation can be proud of," Sen. Graham said. "If you fight that approach, it's going to be a long, hot summer."

Graham's proposal sounds like a better starting point to me. Especially since, you can be assured, that this will be finding its way back to the SCOTUS in challenges.

And never avoiding the opportunity to throw darts:

Several Democrats argued that the Supreme Court ruling was fatal not only to the military commissions but also to other administration policies, such as the warrantless electronic-surveillance program, that the White House says spring from the president's commander-in-chief function or Congress's military-force resolution.

Sen. Charles Schumer (D., N.Y.) asked if the Justice Department was reviewing other policies "that are also based on the [military-force resolution] -- which has been discredited by the Supreme Court -- so that we will avoid a Supreme Court decision" striking them down.

Fortunately, Chuckles Schumer and his ilk are in the minority. Especially considering that this is an election year, there is nothing like having the appearance of going soft on terrorists. Chuckles also seems to have selective memory in that the Hamdi decision did in fact support the military-force resolution as supporting the actions that the administration has taken.

Neal Katyal at Slate, makes the asinine suggestions that the Court Martial is the path to trying these terrorists.

Today the Senate begins hearings on whether to create, from scratch, a new legal system to handle the cases against suspected terrorists held at Guantanamo Bay and around the world. The hearings are a response to Hamdan v. Rumsfeld, the Supreme Court decision that last month struck down President Bush's fake trial system at Guantanamo. This debate is important, and long overdue, but it should not obscure the fact that the military already has a battle-tested system for dealing with such problems: courts-martial. We should only break from that proud American tradition for the best of reasons and with adequate empirical support. There are no such grounds here, and changing the rules now will be another fruitless step backward from our goal of bringing terrorists to justice.

He has good arguments for the problems with any new legislation for the military commissions, but the use of the Court Martial is incredibly short sighted in that it will provide all the protections guaranteed to valid combatants, which these prisoners most certainly are not. I would also state that many of these prisoners will walk if the evidenciary requirements of the Court Martial are required.

I'm all for having justice in these cases. I don't see justice being served by providing terrorists with protections that they refuse to provide for other combatants under the rules of war.

The outcome of these hearings should be an informative indicator as to where many politicians actually stand on the war on terror.