home

Bush's New Detainee Trial Plan Should Be Rejected


The Senate Armed Services and Judiciary Committees began consideration today of Bush's latest proposal for trying detainees. It's a sandbag, as worse if not worse than the plan thrown out by the Supreme Court in June. Call your Senator and tell them to vote against it and insist that detainees be tried under standards that meet the Uniform Code of Military Justice and the Geneva Conventions. As the ACLU states in a new press release:

Specifically, the White House proposal would: gut the enforceability of important Geneva Convention protections; allow the use of evidence obtained through cruel, inhuman, and degrading treatment during interrogations; take the unprecedented step of allowing the federal government to convict a defendant based on secret evidence; bar a defendant from being present at his own trial; and allow the use of the types of hearsay evidence banned from every military and civilian court in America.

The ACLU's July 31 letter outlining the deficiencies is here. The Washington Post reports:

John Yoo, a former Justice Department lawyer who helped draft the earlier plan, said Bush administration officials essentially "took DOD regulations" for the trials "and turned them into a statute for Congress to pass." He said the drafters were obviously "trying to return the law to where it was before Hamdan " by writing language into the draft that challenges key aspects of the court's decision.

"Basically, this is trying to overrule the Hamdan case," said Neal K. Katyal, a Georgetown University law professor who was Hamdan's lead attorney.

As for the plan itself:

The plan calls for commissions of five military officers appointed by the defense secretary to try defendants for any of 25 listed crimes. It gives the secretary the unilateral right to "specify other violations of the laws of war that may be tried by military commission." The secretary would be empowered to prescribe detailed procedures for carrying out the trials, including "modes of proof" and the use of hearsay evidence.

Some of the reasons it's unfair:

Unlike the international war crimes tribunals for Rwanda and the former Yugoslavia, the commissions could rely on hearsay as the basis for a conviction. Unlike routine military courts-martial, in which prosecutors must overcome several hurdles to use such evidence, the draft legislation would put the burden on the defense team to block its use

As to the death penalty provisions:

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.....Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

All Bush has done is take his former tribunal plan and converted into a statute to be passed by Congress, as an end run around the Hamden decision. He's also expanded the class of detainees subject to the plan (from al-Qaeda to other groups) and increased the number of crimes that can be prosecuted under it.
bq. To secure a death penalty under the draft legislation, at least five jurors must agree, two fewer than under the administration's earlier plan. Courts-martial and federal civilian trials require that 12 jurors agree.

As Bruce Fein says:

"the theme of the government seems to be 'They are guilty anyway, and therefore due process can be slighted.' " With these procedures, Fein said, "there is a real danger of getting a wrong verdict" that would let a lower-echelon detainee "rot for 30 years" at Guantanamo Bay because of evidence contrived by personal enemies.

< Good Samaritan Migrant Aid Workers Arrested | Wednesday Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    Re: Bush's New Detainee Trial Plan Should Be Rejec (none / 0) (#2)
    by cpinva on Wed Aug 02, 2006 at 02:00:29 PM EST
    this is returning the law to where it was shortly before the revolution. secret trials, secret evidence, secret witnesses, no accountability. not exactly what our forefathers were fighting for, i expect.

    Why is no one totally outraged by the fact that we have held people for more than 2 years without so much as a hearing to determine charges of specific crimes and offenses? Isn't that a basic tenet of the rule of law that this regime pays lip service to? Do we hold people in limbo because GW and company are too confused as to how to prosecute these "dangerous criminals"? It's very simple: 1] Catch the bad guys 2] Charge them with specific crimes 3] Hold a trial where you here evidence and allow defendants at least a token defense. 4] Convict them of specific crimes according to specific guidelines for those crimes [ok so nobody can convict anyone under the CSA because they have no specific guidelines for drugs]. 5] Carry out sentence. So the present regime won't commit to specific trial procedures. Why have they not at least taken care of steps one and two for more than 2% of those detained? Someone should propose a law that requires anyone held in the US to be released if specific charges are not brought forward! What you say??? There is such a law on the books? OH, that law only applies to US citizenry. Well, we should craft a form of that law for anyone held in custody - except prisoners of war who are covered by Geneva conventions. BTW, I agree that those held in mideast are not prisoners of war.

    Re: Bush's New Detainee Trial Plan Should Be Rejec (none / 0) (#5)
    by Sailor on Wed Aug 02, 2006 at 03:45:53 PM EST
    But isn't that what the supreme court says?
    Nope, it says that the gencons apply, most everything in the proposal is against the gencons.
    Thus, they answer to no one but US citizens and should only look after the interests of US citizens.
    yeah, the constitution, declaration of independance, various treaties, don't mean nuthin' to folks like narius ... not to mention basic empathy and humanity. It's pretty easy to see now how the holocaust happened, declare someone not human or worth being treated like a human and then you can do anything to them.

    Re: Bush's New Detainee Trial Plan Should Be Rejec (none / 0) (#7)
    by chuckj on Wed Aug 02, 2006 at 07:49:34 PM EST
    I'm curious about what the Geneva Conventions say about prisoners of war. I'm well versed as to the conduct of land warfare, but not much about POWs. Do they have to be charged? How long can they be held? Do these detainees qualify as POWs?

    Bush should be rejected.

    Terrorists is a term like Drugs, really doesnt fit a thing. Im sure the British in the 1700,s would have called the colonists terrorists. Would that make them evil then? This entire campaign is a waste.

    Re: Bush's New Detainee Trial Plan Should Be Rejec (none / 0) (#10)
    by Bill Arnett on Fri Aug 04, 2006 at 11:41:55 AM EST
    Narious sez: "Thus, they answer to no one but US citizens and should only look after the interests of US citizens." Do the words, "...ALL men are created equal and endowed by THEIR creator with certain inalienable rights..." have any meaning or not? Our Constitution recognizes the rights of ALL persons, and politicians who vote against extending those rights, or limiting them in such a fashion as to render the above words superfluous, willfully violate their oath of office to "protect, defend, and uphold the Constitution against all enemies, foreign or domestic." So you see, Narious, that your opinion is your opinion, but the Constitution is the law of the land and its provisions render your opinion moot as to this issue. You are of course free to express it, but at least acknowledge that our laws, based on our Constitution, make no distinction between Americans and furriners. All are entitled to equal treatment, which means "prove it in a court of law, playing by the rules."