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Senate to Defer Debate on Detainee Trials


Update: Sen. Frist has announded the Senate will not take up the issue of legal rights of the detainees until after the August recess.

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It seems like the Supreme Court's decision in Hamdan (opinion here, pdf) has thrown the legislative and executive branches into a tailspin. They can't figure out what to do with it. Nonetheless, the Senate is set to begin debate on how to try detainees and the debate could take the rest of the summer.

In its decision, the Supreme Court said, on a 5-to-3 vote, that the planned commissions were unauthorized by federal statute and violated international law.

In opposite corners:

On one side of the debate are Republicans who believe Congress should give the president the authority to set up the kind of military commissions that were struck down by the court. Such commissions would sharply curtail defendants' rights.

On the other side are those who say the trials should be modeled on the military system of courts-martial, an approach that would give detainees more due-process rights than would the commissions. In between, many Republicans and Democrats alike argue for starting with the military judicial system and tweaking it to reflect the differences of trying terrorism suspects.

The difference between tribunals and courts-martials:

The central question is what kind of forum to set up. Commissions allow the government wide berth in introducing evidence, including hearsay, which is banned in military courts, and restrict the rights of the accused to be present in the court and to see the evidence against them. Military courts-martial, while not as strict as civilian courts, restrict the kind of evidence that can be introduced and allow the accused to interview witnesses and see even classified evidence.

Options: From John Yoo, one of the primary drafters of the infamous torture memo :

"The debate that people are having is whether it's going to be a short bill that just overrules Hamdan completely, which you could do in one sentence, or whether it's going to be a much more comprehensive law that tries to set out essentially a code of procedure for the military commission."

Sen. Patrick Leahy:

"The Supreme Court said the president cannot continue to break the law," said Mr. Leahy, the Vermont Democrat. "The worst thing to do would be to simply paper that over and say we'll make it possible for him to break the law."

Should make for interesting hearings. Also see Christy at Firedoglake who reports on the ethics dust-up going on with Sens. Graham and Kyl over mispresenting (fabricating) a portion of the Congressional record in their amicus brief in the Hamdan case. More info on this is available in John Dean's latest column at Findlaw. Background from Emily Brazleton at Slate is here.

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    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#1)
    by Talkleft Visitor on Mon Jul 10, 2006 at 10:21:30 AM EST
    In between, many Republicans and Democrats alike argue for starting with the military judicial system and tweaking it to reflect the differences of trying terrorism suspects.
    Well that's odd. It seems that, again, those in the middle are probably right. Another mark against the far left and the far right.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#2)
    by Che's Lounge on Mon Jul 10, 2006 at 10:36:12 AM EST
    I read Dean's article. Kyl and Graham should be disbarred and forced to resign. And I'm being kind.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#3)
    by squeaky on Mon Jul 10, 2006 at 10:39:55 AM EST
    An effort by Mr. Leahy in 2001 to introduce legislation establishing tribunals was rebuffed by the White House. "They said no, they knew what they were doing, they would do it alone," Mr. Leahy said. "What's happened? Five years, there have been no trials, no convictions, nothing has happened, we've had our reputation severely hurt throughout the rest of the world."
    One way to repair the damage the rethugs have done to our International standing is to open up the tribunals to include the International Community. Considering that these are people from various countries it seems only fair to include their peers as well.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#4)
    by squeaky on Mon Jul 10, 2006 at 10:49:51 AM EST
    Yes Che's Lounge I agree. These guys, with the deck alredy stacked, refuse to play fair. Sadly they are most likely proud of their unprecidented effort. They even lied about that, saying that it is done all the time. Lying cheating and stealing for the neocon agenda is considered patriotic these days.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#5)
    by scribe on Mon Jul 10, 2006 at 02:57:12 PM EST
    Y'know, Congress could elide this whole problem if they really took the time to read the Hamdan opinion. My reading and re-reading the opinion by Stevens, for the Court, shows he wrote that Congress could do something different(to authorize military commissions), if it felt moved to do so, but that it didn't have to because court-martials under the UCMJ would meet the statutory and treaty requirements of the Rule of Law. Now, when we cut through all the bluff and bluster, the big reason the Unit wants military commissions is twofold: (a) he wants to control the process and the (then-guaranteed)result and (b) he wants to be able to use torture-derived "evidence" against these PWs. In a trial under the UCMJ, he has no guarantee of either. Moreover, he might never be able to try any of these PWs anyway because of (at a minimum) illegal "command influence" so poisoning the chances of a fair trial that the cases would have to be dismissed. So, in an election year, Congress could try to make up a whole new UCMJ-analog just for these PWs, or it could just do what it's done best - nothing - and let the trials go forward as courts-martial. I opine the latter is the better course, both in the short and long runs.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#6)
    by Talkleft Visitor on Mon Jul 10, 2006 at 03:21:00 PM EST
    Why bother trying them at all? clearly they can now be left to rot in Gitmo until Al Quaeda surrenders. Anybody expect that to happen soon?

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#7)
    by Talkleft Visitor on Mon Jul 10, 2006 at 03:46:46 PM EST
    I'm one who thinks that very few of the detainees are guilty of any serious crime at all. I think a/q is an intel created and sponsored network maintained to achieve a variety of goals. Regardless of that, given the creep of serious charges based on flimsy evidence...potential...involving US citizens, are there any thoughts to what US citizens can expect if we're falsely accused?

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#8)
    by Talkleft Visitor on Mon Jul 10, 2006 at 04:01:33 PM EST
    Al Qaeda can elide the entire problem by simply surrendering. Once they do so the guys in gitmo will be repatriated. I'm sure the host countries will be glad to have these fine men returned to them. rumi, are you serious? It's funny, honestly, but back in the sixties people said the exact same things. Why its deja vue all over again. Besides, your government doesn't need to trump up flimsy charges to arrest you. Why should they? They need you to get up every morning and go to work so that you can pay taxes that they can then spend on whatever idiot idea comes to mind. If you're in jail you're a tax consumer not a tax payer and congress can't have that. Oh no.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#9)
    by Talkleft Visitor on Mon Jul 10, 2006 at 08:26:28 PM EST
    skip - It's the same folks and many of the same connections from the sixties. It rolled right into Iran Contra and when that was slowed, but not stopped, it morphed into the Abramoff-CC-GlobalCorps network of illegally financed covert foreign policy. What's your take on the mishandling pf Greenquest with the Bush-Saudi connections Chertoff's involvement and the PTech fiasco? Speaking of Iran-Contra players, the Italian govt is breaking all of this wide open investigating SISMI, their own domestic surveillance illegalities, neocontra veterans and the true sources of the Niger document fraud forgery conspiracy. I'm curious why not many are mentioning the Jefferson dealings in Niger and all the possibly incriminating documents BushCo was able to get. The next scandal to uncover just might be the corruption and power struggle...heh...over global BPL.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#10)
    by Sailor on Tue Jul 11, 2006 at 07:26:57 AM EST
    Most of them are not, according to the military, associated with AQ.

    Re: Senate to Defer Debate on Detainee Trials (none / 0) (#11)
    by aw on Tue Jul 11, 2006 at 09:07:23 AM EST
    Posted by skip July 10, 2006 05:01 PM
    Al Qaeda can elide the entire problem by simply surrendering.
    Just who is AQ anyway? If Osama himself surrendered, do you think that would be the end of it?