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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